Pidgeon v Millar t/as Classic Crete
[2018] QCAT 155
•1 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Pidgeon & Anor v Millar t/as Classic Crete & Anor [2018] QCAT 155
PARTIES:
BRENDAN PIDGEON
(first applicant)
ARIFAH PIDGEON
(second applicant)v JENNIFER EUNICE MILLAR T/AS CLASSIC CRETE
(first respondent)
JAMES ROBERT RAY LYONS
(second respondent)APPLICATION NO/S:
BDL212-16
MATTER TYPE:
Building matters
DELIVERED ON:
1 June 2018
HEARING DATE:
20 October 2017
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
Jennifer Eunice Millar t/as Classic Crete and James Robert Ray Lyons must pay Brendon Pidgeon and Arifah Pidgeon the sum of $8,185.70 by 4:00pm on 9 July 2018.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – domestic building dispute – where the respondents were unlicensed – where the works were partly paid by the applicant but not performed – whether the first respondent was liable – holding out
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
Brendon Pidgeon and Arifah Pidgeon (the Pidgeons) filed an application for domestic building dispute in the Tribunal on 23 August 2016, claiming an amount of $7,870.00 for ‘return of funds’ paid for concreting work to be undertaken at their property at 17-19 Watt, Cornubia.
The application specified ‘Jennifer Eunice Millar (Classic Crete)’ as respondent.
Ms Millar’s response to the application was that Classic Crete was the business vehicle of one James Robert Ray Lyons and that she had no interest in the business.
Mr Lyons applied to the Tribunal to be joined as a respondent and was so joined on 21 December 2016. He supports Ms Millar’s contention that she was not involved.
It is not contested that:
(a)Neither respondent was licensed to carry out the work;
(b)The Pidgeons have paid by three separate electronic transfers the sum of $7,870.00 into an account nominated by either or both of the respondents; and
(c)Neither respondent has undertaken or can undertake in the future any part of the works.
Mr Lyons acknowledges that he is liable to repay the amount and quite clearly he is. The issue to be determined by the Tribunal is whether Ms Millar is liable either alone or jointly.
Mr Lyons is currently serving a term of imprisonment after pleading guilty to a number of fraud charges. He attended the hearing, with leave, by telephone from a correctional facility.
Ms Millar applied to attend the hearing by telephone. Despite that application being refused she did not appear at the hearing. With the consent of the Pidgeons, I granted her leave to attend by telephone and she participated in the hearing.
Mr Lyons was rude and disruptive throughout the hearing. Ms Millar appeared to be a reluctant participant. Their oral evidence was of little assistance because they simply did not address in any great detail their interactions with the Pidgeons, they simply wanted to argue with them. I did not think either was a credible witness.
The Pidgeons appeared in person. Both gave evidence and were
cross-examined by Mr Lyons and Ms Millar aggressively, and largely ineffectively. I accept that their written evidence, both written and oral, was truthful and is to be preferred to the evidence provided by Mr Lyons and Ms Millar.
In their joint response to Mr Lyons’ application to be joined, the Pidgeons point to two things which support the contention that Ms Millar held herself out as being party of Classic Crete, namely:
(a)Emails signed off from ‘Jenn M’ (Classic Crete email) in regards to quotes, deposits requirements, invoices and general communication about the job;[1] and
(b)Communications from the Queensland Building and Construction Commission (QBCC) about their prosecution of Ms Millar for unlicensed contracting in receiving a deposit in excess of the limits.[2]
[1]Response dated 5 December 2016.
[2]Letter QBCC to Brendon Pidgeon dated 7 June 2016.
In respect of the first of those, both Mr Lyons and Ms Millar say that Mr Lyons was the author of all of those emails without Ms Millar’s knowledge or consent. Given that the email used in those communications is the same email address has notified to the Tribunal as her email address for the purposes of these proceedings, I find it difficult to accept at the least that she had no knowledge of the exchanges.
In respect of the second, it is unclear from the evidence how the QBCC identified Ms Millar as the responsible party and whether it was correct in so doing. In any event, at the time of these dealings there is no evidence from the Pidgeons that they conducted business name or ABN searches and drew any conclusions from such searches or other inquiries. They cannot retrospectively adopt the findings of the QBCC.
Ms Millar has filed four separate statutory declarations in the Tribunal on
20 April 2017 denying that she was ‘at all involved with the communications, texts, emails, quotes, taking of money’. Her only involvement she said was driving Mr Lyons around for a short period when his license was disqualified.
That is not the case, at least so far as the Pidgeons are concerned. It is common ground that both Ms Millar and Mr Lyons met with the Pidgeons at their home during the course of their dealings. The Pidgeons’ version of events, confirmed during oral evidence, is set out in their response to the joinder application of Mr Lyons.
I take it, primarily from the cross-examination of the Pidgeons, that Mr Lyons and Ms Millar do not accept the Pidgeons’ version of that meeting in its entirety, but neither Mr Lyons nor Ms Millar gave detailed evidence of their recollection of events of the meeting. I accept the Pidgeons’ evidence.
Ms Millars participation in that meeting makes it difficult to accept that she had no knowledge of what Mr Lyons was doing, but it is not necessary to make any finding in that regard.
On the basis of the evidence of both Mr and Mrs Pidgeon, Ms Millar very clearly represented to them that she and Mr Lyons were in business together and that she took care of the administration. She participated in the measurement of the site and was actively involved in the discussions on site, perhaps not to the same extent as Mr Lyons.
The Pidgeons are entitled to rely on that representation in the absence of evidence to the contrary.
In those circumstances, I am satisfied that both Mr Lyons and Ms Millar are jointly and severely liable for the repayment of the $7,870.00 paid by the Pidgeons.
The Pidgeons have also claimed interest at the standard default contract rate of 9.25% from 31 March 2016 to the date of payment. There is no evidence that this was a term of their agreement and I am not prepared to allow an interest payment component.
I allow the Pidgeons the sum of $315.70 for costs, being the filing fee paid on their application.
I order Jennifer Eunice Millar t/as Classic Crete and James Robert Ray Lyons must pay Brendon Pidgeon and Arifah Pidgeon the sum of $8,185.70 by 4:00pm on 9 July 2018.
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