McElligott v Butler McDermott Lawyers

[2011] QCATA 182

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 the original proceedings were in QCAT’s Minor Civil Disputes jurisdiction, Ms McElligott must seek leave to bring her appeal: QCAT Act s 142(3).

6. In her submissions in support of her application for leave Ms McElligott alleges that she provided ‘… sufficient evidence to show that Butler McDermott was aware that I was acting as an agent for Westwood Enterprises’.  It is that factual finding which was at the core of the decision of the Magistrate. 

7. The learned Magistrate heard evidence from both parties, and made a specific finding that the solicitors: ‘… had no notification that the purchase of this property at Woombye was for the company Westwood Enterprises’.  In the reasons she gave for her decision, she went on to say: ‘I am satisfied that Butler McDermott believe that this purchase was for [McElligott] personally and the proof of that is in the file note that Ms Armitage attaches to her affidavit’.  (Ms Armitage was the solicitor who had carriage of the matter.)

8. That file note recorded a conversation between Ms McElligott and the lawyer at Butler McDermott who was acting for her, and is in terms entirely consistent with the purchase being in Ms McElligott’s name and not that of her company.

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

[10]  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.[2]

An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[4]

[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at

125-126.

[3]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[4]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

[11]  It is true that the solicitors had handled other matters for Westwood Enterprises.[5]  Ms McElligott filed a very lengthy affidavit, with many exhibits, purporting to establish that she was always acting as agent for the company, and that the solicitors knew that.  Against that, however, there was evidence from two solicitors from Butler McDermott to the effect that their instructions were never to the effect that Ms McElligott was Westwood’s agent, or involved anything which might give rise to a suspicion or inference to that effect.

[5]See the decision of the Court of Appeal in the McElligott v Boyce & ORS [2011] QCA 117.

[12]  The learned Magistrate was obliged to make findings about this factual dispute.  She chose to accept the evidence of the lawyers and has explained how and why she did that – ‘… from all the evidence that’s been placed before me’. 

[13]  Nothing in Ms McElligott’s submissions is persuasive that the learned Magistrate’s decision was against the weight of the evidence, or involved any error of fact, or law. 

[14]  Ms McElligott’s complaint is, really, that her evidence was not preferred; that is so, but the Magistrate’s decision to prefer the evidence of the lawyers has not been shown to be wrong, and was reasonably open on the evidence presented to her.  Dissatisfaction with legitimate conclusions about acceptable evidence is not grounds for leave to appeal, or an appeal.

[15]  The application for leave to appeal is refused.