McElligott v Butler McDermott Lawyers

CITATION: McElligott v Butler McDermott Lawyers [2011] QCATA 182

PARTIES:	Lorain Ronda McElligott (Applicant/Appellant)
v
Butler McDermott Lawyers (Respondent)

APPLICATION NUMBER:   APL140-11

MATTER TYPE: Appeal

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     The application for leave to appeal is refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where, on the face of a real estate contract, Ms McElligott nominated Butler McDermott as her solicitors – where the conveyance did not proceed and solicitor sent Ms McElligott an account for $143 – where Ms McElligott refused to pay that account, on the grounds that she was acting as the agent and nominee of a company called Westwood Enterprises (Qld) Pty Ltd – where a Magistrate found that Ms McElligott had never given any instructions, information or notice to that effect and the solicitors were entitled to assume that she was their client and to render their fees to her – where Ms McElligott now seeks leave to appeal that decision – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 142

Ash v Comans [2003] QSC 014, cited
Chambers v Jobling (1986) 7 NSWLR 1, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 214 CLR 118, cited

McElligott v Boyce & ORS [2011] QCA 117, cited

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

1. In August 2008 Ms McElligott signed a real estate contract for the purchase of residential property at Woombye.  On the face of the contract she nominated the respondent law firm in Nambour as her solicitors.

2. The contract was conditional upon Ms McElligott obtaining finance to complete the purchase.  She was unable to do so and the conveyance did not proceed.  The solicitor sent her an account for $143.  This appeal concerns her refusal to pay that account, on the grounds that she was always acting as the agent and nominee of a company called Westwood Enterprises (Qld) Pty Ltd, of which she was the sole director and shareholder.

3. The solicitors commenced proceedings to recover their fees in QCAT’s Minor Civil Disputes jurisdiction, which Ms McElligott contested.  The matter was heard by a Magistrate, sitting as a QCAT Member, in Nambour on 21 February 2011.

4. The learned Magistrate concluded that, whether or not Ms McElligott intended to purchase the property as the agent of her company, she never gave her solicitors any instructions or information or notice to that effect and they were entitled to assume, and to proceed on the basis that, she was their client and to render their fees to her (even if she was, in fact, acting as the undisclosed agent for the company[1]).

   [1]        Ash v Comans [2003] QSC 014.

5. Because…