McLellan v Earthtrade Environmental Brokers
[2015] QCATA 56
•16 January 2015
| CITATION: | McLellan v Earthtrade Environmental Brokers & Ors [2015] QCATA 56 |
| PARTIES: | Randall McLellan (Applicant/Appellant) |
| v | |
| Earthtrade Environmental Brokers (previously BMRG Services Pty Ltd t/as Earthtrade) now Herron Todd White (Environmental ) Pty Ltd t/as Heron Todd White Earthtrade Burnett Mary Regional Group for Natural Resource Management Limited |
| APPLICATION NUMBER: | APL068-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President Stilgoe OAM |
| DELIVERED ON: | 16 January 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant a director of company – where applicant claimed directors’ fees – where company resolution to rescind right to directors’ fees – where Magistrate dismissed claim – whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr McLellan was director and chairman of ‘Earthtrade’ (BMRG Services Pty Ltd t/as Earthtrade) between 2008 and 2011. He claimed directors’ remuneration based on a board resolution dated 23 June 2011. Herron Todd White (Environmental ) Pty Ltd t/as Heron Todd White Earthtrade agreed that Mr McLellan was entitled to the remuneration, but submitted that the remuneration was due from Burnett Mary Regional Group for Natural Resource Management Limited. Burnett denied liability. Mr McLellan filed a claim against multiple respondents. A Magistrate, sitting as a member of the tribunal, dismissed Mr McLellan’s claim.
Mr McLellan wants to appeal that decision. He points to a number of findings by the learned Magistrate in which there is a reference to “respondents” denying liability and says that the learned Magistrate was in error. He says that the learned Magistrate should have accepted Earthtrade’s submission that there was a liability to pay the directors’ remuneration.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i)).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Mr McLellan is correct when he says that Herron Todd White agrees that there is a liability. The learned Magistrate is also correct in recording that the respondents submit there is no liability, because neither Herron Todd White nor Burnett says it should pay Mr McLellan. The issue for the learned Magistrate was whether Mr McLellan and Herron Todd White were correct in their submission that Burnett had an obligation to pay Mr McLellan.
The learned Magistrate considered two resolutions of the Burnett board. The first was a resolution dated 23 June 2011: ‘That BMRG will remunerate Earthtrade Directors for bi-monthly meeting fees backdated two years’. The second was a resolution dated 26 July 2011: ‘It is resolved that the Burnett Mary Regional Group for BMRG Ltd does not pay any remuneration to Earthtrade Direrctors’. The learned Magistrate accepted that the resolution of 26 July 2011 was a blanket recission of any entitlement to payment of directors’ remuneration.
Mr McLellan says that the resolution of 26 July 2011 may have removed Burnett’s obligation to pay directors but it did not affect Earthtrade’s obligation to pay its directors. He says that, because Herron Todd White says Earthtrade has a liability, the learned Magistrate should have made an order in Mr McLellan’s favour.
The difficulty with Mr McLellan’s argument is that, at the time of the resolution, ‘Earthtrade’ was Burnett, and vice versa. The intentions to which Mr McLellan referred the learned Magistrate are evidenced by the resolutions. The last resolution was one rescinding any right to remuneration. ‘Earthtrade’, in its new guise, cannot retrospectively impose an obligation on an entity differently constituted simply because it bears a similar name.
The evidence can support the learned Magistrate’s decision. There is nothing in the transcript material to persuade me that the learned Magistrate should have taken a different view of the facts.
There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.
0