Investrend Property Group Pty Ltd v Wegener
[2012] QCATA 11
•18 January 2012
| CITATION: | Investrend Property Group Pty Ltd v Wegener [2012] QCATA 11 |
| PARTIES: | Investrend Property Group Pty Ltd (Applicant/Appellant) |
| v | |
| Max William Wegener (Respondent) |
| APPLICATION NUMBER: | APL284-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 18 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted.1. The appeal is allowed.2. The decision of the Tribunal dated 28 July 2011 is set aside and instead it is ordered that minor civil dispute 3614 is dismissed.3. |
| CATCHWORDS: | Minor Civil Dispute – where decision on the papers – where the Tribunal failed to consider material filed by the applicant – where material not on the file at the time of consideration – where applicant denied procedural fairness – where Appeal Tribunal in a position to decide the minor civil dispute application – whether written agreement entered into between the parties encompassed the entire agreement between them – consideration of the entire agreement clause – where no alternate agreement asserted by the respondent to justify employer/employee arrangement – where written agreement established the respondent retained as an independent contractor Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
In June 2010 Mr Wegener entered into an Agreement with Investrend Property Group (“Investrend”) to work for it as a client liaison officer. The Agreement is described as a “Commission Agreement” and in the first paragraph of the Agreement it is referred to as a “Contract Agreement”.
The recitals provide that Investrend is “desirous of utilising the services of the contractor in the company’s business”. They also provide that the parties, that is Mr Wegener and Investrend wished to utilise the provisions of the Agreement to “regulate the totality of the relationship between the company and the contractor”. The Agreement then sets out each parties obligations and responsibilities under the Agreement. There is a schedule to the Agreement which identifies Mr Wegener’s position as a “client liaison officer – real estate person.” There is a fee payable to Mr Wegener who is there described as a “contractor” which is based on monthly sales plus GST. Mr Wegener provided an Australian Business Number 65 499 420 278, presumably for tax purposes.
The arrangement only lasted for about a month between 21 June 2010 and 28 July 2010.[1] Mr Wegener did not make any sales and was not paid any money by Investrend.
[1] QCAT Act, s 142(3).
On termination of the relationship, Mr Wegener claimed an entitlement to wages on the basis that he was an employee of Investrend and he did not regard himself as an independent contractor to the company. Investrend did not pay the claim of $4,257.00 and as a consequence Mr Wegener commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal.
Rather than file a response to Mr Wegener’s application, Investrend filed an application in a miscellaneous matter to have his claim struck out on the grounds that the Agreement annexed to Mr Wegener’s application and relied on, being the entire Agreement between the parties, established that he was an independent contractor and not an employee. No other Agreement was alleged in Mr Wegener’s application and therefore he had no basis to bring the claim for wages nor that the true relationship between the parties was one of employer and employee.
To deal with the principal application and the strike out application the Tribunal made orders on 14 June 2011 for the filing of submissions and for both applications to be determined on the papers on the basis of the evidence filed.
On 28 July 2011 a Tribunal Member considered Mr Wegener’s affidavit and submissions (in the affidavit) and concluded that there was an employer/employee relationship and Mr Wegener was entitled to be paid $3,994.92. An order was made accordingly.
From that decision Investrend has filed an application for leave to appeal or appeal. Leave is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction. The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Appeal Tribunal made directions for the filing of submissions and both Investrend and Mr Wegener have filed submissions in the application for leave to appeal.
[10] It is immediately apparent that leave to appeal must be granted in this case because Investrend has been denied procedural fairness. In the reasons for his decision, the learned Member said in paragraph 1 that:
“The Tribunal ordered the parties to file and serve submissions and supporting material by fixed dates. Mr Wegener has done so but not Investrend Property Pty Ltd. Accordingly this matter shall be determined on the papers, as also ordered, on the material filed to date.”
[11] The Tribunal Member then went on to only consider the material filed by Mr Wegener.
[12] Investrend complains, with some justification, that the Tribunal did not consider the affidavit of Mr Habberfield, a director of Investrend. It is clear, that Mr Habberfield’s affidavit, which includes both evidence and submission in support the strike out application and response to the application, was received by facsimile in the Tribunal on 19 July 2011. An original copy was received by the Tribunal on 20 July 2011.
[13] It is unclear why Mr Habberfield’s material was not considered by the Tribunal and the only reasonable explanation could be that at the time the learned Member was asked to make a decision, that material had not made its way to the file. I have no doubt that if the material had been on the file or otherwise brought to his attention, the learned Member would have given it due consideration.
[14] As leave to appeal has been granted on a question of law only, this Tribunal can either confirm or amend the original decision, or set it aside and substitute its own decision. It can also set the decision aside and return it to the Tribunal.[6] As the parties consented to the original applications being determined on the papers on 14 June 2011, there is no reason why the Appeal Tribunal can not consider the matter on the material filed and substitute its own decision.
[6] QCAT Act, s 146.
[15] In his minor civil dispute application, the applicant based his claim on the Real Estate Industry Award of 2010. He acknowledges signing the Commission Agreement and admits that no commission was paid because no sales were made during the period of his retainer. He was not paid expenses. He has calculated his claim on the basis of a weekly award rate of $604.36 plus 17.5% superannuation plus accrual of leave.
[16] He does not allege, in his affidavit dated 27 June 2011, any discussions between himself, Mr Habberfield or any other representative of Investrend concerning his employment conditions, his rates of pay if any, or any other basis upon which he might be paid other than what is contained in the Commission Agreement.
[17] In his affidavit, Mr Wegener submitted that he was never informed by any representative of Investrend that he was signing the Commission Agreement as a contractor nor was he informed that he would be considered to be a contractor. He is impliedly suggesting that in the absence of any statement as to the specific nature of the employment it is to be inferred from the written document that there was an employer/employee relationship.
[18] Mr Wegener annexes a number of documents to his statement but these do not assist his case when one looks to what the actual agreement was between the two parties. The only evidence put forward by Mr Wegener as to the terms and nature of his employment is the Commission Agreement.
[19] To substantiate the basis of his claim he relies on a statement from Mr French, a representative from Property Sales Association of Queensland (Union of Employees) who calculated his loss of wages at 5.6 weeks at $604.36/week plus annual leave entitlement on a pro rata basis together with superannuation at 9% for a total claim of $3,994.92.
[20] The basis of Mr Wegener’s claim clearly contradicts the terms of the written Agreement which specifies that he was to be paid on a commission basis only.
[21] Investrend, naturally, take the position that the Commission Agreement by its terms, encompassed the whole of the transaction between it and Mr Wegener. As a matter of principal this is undoubtedly correct and supported by authority[7] the exception to this of course is if, in a performance of Agreement it is necessary to imply terms.[8] Parol evidence is also admissible if there are allegations of fraud or misleading and deceptive conduct.[9]
[7]Cheshire and Fifoot’s Law of Contract 9th edition paragraphs 10.5 – 10.7; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25
[8] Equus Corp Pty Ltd v Glengaddin Investments Pty Ltd [2004] HCA 55.
[9] McDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152.
[22] There is no allegation of fraud or misleading and deceptive conduct on the part of Investrend. There is no evidence of any previous Agreement either collateral to or inconsistent with the written Commission Agreement. There is no ambiguity alleged as to the terms of the written Agreement. In those circumstances the Tribunal has no alternative but to regard the Commission Agreement as being the entire Agreement between the parties which excludes the contention that the true Agreement between Mr Wegener and Investrend was in the nature of an employer/employee agreement necessarily resulting in the implication of terms as to the payment of a salary or wages of the type claimed in Mr Wegener’s affidavit relying on Real Estate Industry Award 2010.
[23] Mr Wegener’s references to the Property Agents and Motor Dealers Act 2000, Fair Work Australia and the concerns raised by Justice Bromberg, in an article about clarity between employees and independent contractors, do not assist in determining the true relationship between Mr Wegener and Investrend in the face of the written agreement. If it is contended that this evidence strikes down the Commission Agreement as being “illegal” it still does not establish a cause of action on the part of Mr Wegener to recover wages in the minor civil dispute jurisdiction as a debt. He may have a remedy elsewhere but not in this Tribunal.
[24] In conclusion Mr Wegener has not established a cause of action for the recovery of the sum claimed and therefore the minor civil dispute application must be dismissed.
1
0
0