Kevik Pty Ltd v Fielding and Whyte as Receivers and Managers of Arash Gol Mohammadi
[2012] QCATA 215
•25 October 2012
| CITATION: | Kevik Pty Ltd v Fielding and Whyte as Receivers and Managers of Arash Gol Mohammadi [2012] QCATA 215 |
| PARTIES: | Kevik Pty Ltd |
| v | |
| Andrew Fielding and David Whyte as Receivers and Managers of Arash Gol Mohammadi t/as Priceline Pharmacy Toombul (Receivers and Managers Appointed) |
| APPLICATION NUMBER: | APL100-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 25 October 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where claim for work done – where claim assessed as quantum meruit – where error in method of assessment of claim – whether procedural fairness – where appropriate to make assessment on the evidence Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 Pavey & Matthews v Paul (1987) 162 CLR 221 |
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
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
The major difficulty with the applicant’s appeal is that, apart from Mr Kerr’s evidence that the respondents were aware that Mrs Kerr was doing the extra hours on Sunday night, there is no objective evidence to support that contention in face of a denial by the respondents that they knew of this extra work. In fact, Mr Postle was quite emphatic that Mrs Kerr was to only work her rostered hours.
It was not until Mr Kerr came to realise that the pharmacy was to be sold that he decided to render the invoice for the extra work done. Why this was not done at an earlier stage, if there was in truth an agreement that the extra work would be paid for, is problematic for the applicant. This is particularly so when invoices were rendered for the rostered hours.
In my view the applicant has not discharged the burden of proof to establish a basis for the quantum meruit claim as found by the learned Adjudicator.
Member Susan Gardiner
Ms Joye Kerr had worked as a pharmacist since 2007 at Priceline Pharmacy Toombul, contracted though the company Kevik Pty Ltd. Receivers and managers were appointed for the Priceline business in July 2010.
A dispute arose between Kevik and the receivers and managers over extra work Ms Kerr alleged she had performed at the pharmacy and for which she says she had not been paid.
Kevik, through its director Ian Kerr commenced an action in QCAT’s minor civil jurisdiction in July 2011 for monies Kevik alleged were owed for work performed by Ms Kerr.
The matter was heard in QCAT on 1 March 2012. The learned adjudicator found that Kevik had not established that a contract of employment existed between the parties which included payment for the extra-ordinary hours claimed by Ms Kerr, 6 months after other invoices for the same period had been routinely presented and paid by the receivers and managers.
Kevik, through its director Ian Kerr appeals this decision.
Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[1] The question whether or not leave 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]
[1] Section 142 Queensland Civil and Administrative Tribunal Act 2009.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
In summary Kevik‘s appeal and submissions specify the following main grounds for its application:
i) That the claim should have been allowed on a quantum meruit basis;
ii) That the claim should be allowed under provisions or breaches of the Pharmacy Act 1976;
iii) That procedural fairness was not accorded Mr Kerr at the hearing;
Claim for Quantum Meruit
A claim based on quantum meruit can be made by an applicant for reasonable remuneration for work already performed and voluntarily accepted by the respondent. It is insufficient to merely show the work has been done[6]. A claim for quantum meruit may be available to allow recovery for services rendered[7]; and, can be made when the contract is at an end or is unenforceable or in circumstances where there is no contract[8]. Here the learned adjudicator was not satisfied, on the evidence before him that the receivers and managers had agreed to or were even aware of the extra work Ms Kerr alleges she undertook.
[6]Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221 per Mason and Wilson JJ at 229; Seddon et al (eds) Cheshire and Fifoot’s Law of Contract Butterworths 2008 9th ed 1189.
[7]Sumpter v Hedges [1898] 1 QB 673; Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221 per Deane J at 256-257.
[8] Macken et al, Law of Employment Lawbook Co, 5th ed, 2002 287.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[9]
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
A close reading of the transcript of this hearing shows that the findings of the learned Adjudicator were capable of being supported by the evidence provided by the parties before him and this Appeal Tribunal finds no reason to disturb the findings made.
Because the learned Adjudicator was not satisfied that the receivers and managers had not agreed to or were even aware of the alleged extra work of Ms Kerr, voluntary acceptance of the work could not be proven by Mr Kerr and, as it is insufficient to merely show the work has been done, this claim cannot succeed on the basis of quantum meruit.
Kevik’s appeal on this ground must fail.
The Pharmacy Act 1976
This claim is brought under QCAT’s minor civil jurisdiction. If Mr Kerr wishes to proceed under the Pharmacy Act 1976 he must look to that Act for redress. There is no head of jurisdiction under this Act in QCAT’s minor civil jurisdiction and arguments advanced under this Act provide no sustainable ground in this appeal application.
Procedural Fairness
Finally Mr Kerr argues that he was not given procedural fairness at the hearing. This allegation seems to centre around a statutory declaration of Mr Kerr of 7 February which was read by the Adjudicator at the hearing and a further declaration provided by the receivers and managers, also at the hearing.
The minor civil jurisdiction within QCAT is an extremely busy jurisdiction. Decision makers must deal with the evidence presented by the parties fairly while still effectively using the hearing time available to each matter to reach a decision. This means dealing with evidence that is presented by parties on the day where ever possible. As long as adequate time is given to the parties to comment on the material or to ask questions that arise from it, the responsibilities of natural justice and procedural fairness are fulfilled in the hearing process.
The transcript show that in this matter these opportunities were afforded to Mr Kerr and Kevik’s appeal on this ground must also fail.
There is no demonstrated or discernable error in the learned Adjudicator’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
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