Quikfund Australia Pty Ltd v Innes
[2013] QCATA 287
•21 October 2013
| CITATION: | Quikfund Australia Pty Ltd v Innes [2013] QCATA 287 |
| PARTIES: | Quikfund Australia Pty Ltd (Appellant) |
| v | |
| Kathy Marie Innes (Respondent) |
| APPLICATION NUMBER: | APL288-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | P Stilgoe OAM, Senior Member |
| DELIVERED ON: | 21 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 26 June 2013 is set aside. 4. Kathy Marie Innes’ claim is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where contract for equipment rental – where application filed against agent – whether agent liable – whether correct entity identified – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT 2009).
REASONS FOR DECISION
In 2007, Ms Innes rented some business equipment. She signed two contracts. Relevantly, one was a contract with Australian Equipment Rentals Pty Ltd.
Ms Innes says that she signed the contract based upon representations by Mr Spiro and Mr Viertel from Axis Telecommunications. Ms Innes says that none of the representations was true. Importantly for this dispute though, Ms Innes says that the equipment was not working and was not maintained in accordance with the representations.
When she was trying to resolve these issues, Ms Innes dealt with Quikfund Australia Pty Ltd. When she could not get satisfaction from Quikfund, Ms Innes filed a claim for a refund of $3,024 she had paid plus relief from paying a further $1,581. Ms Innes’ claim was heard by a JP panel. The learned JPs ordered that Quikfund pay Ms Innes $4,346 and that it collect the rental equipment from Ms Innes within fourteen days.
Quikfund wants to appeal the learned JPs’ decision. Although the application is in the name of Quikfund, the submissions have been filed by Enterprise Finance Solutions Pty Ltd. Enterprise submits that Quikfund is not the correct respondent because it was simply acting as agent for Australian Equipment Rentals. Enterprise also suggests that Australian Equipment Rentals was acting as its agent. Finally, Enterprise says that the learned JPs did not have proper regard to the terms of the agreement, which are contrary to Ms Innes’ submissions at the hearing. Enterprise does, however, offer a concession; it is willing to refund three months’ rental.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned JPs’ confusion is understandable. At the hearing, Ms Eileen Robberds appeared on behalf of Quikfund. She has signed correspondence to the tribunal from both Quikfund and Enterprise. Ms Robberds refers to Australian Equipment Rentals’ obligations as ‘our obligations’[8]. It seems that Ms Robberds represents every possible respondent in this convoluted transaction.
[8] See letter Quikfund to QCAT dated 3 July 2013.
There is further justification for the learned JPs’ confusion. Ms Innes’ claim was that the equipment was not maintained over the course of the contract. In evidence, Ms Robberds said[9] that this was not Australian Equipment Rentals’ responsibility. Ms Robberds told the learned JPs that this obligation fell to the “dealer”, Queensland Communications Company, because that’s who was paid for the equipment[10]. Exactly which of the entities Ms Robberds was referring to as “dealer” was not clear.
[9] Transcript page 1-13, lines 25-27.
[10] Transcript page 1-12, lines 34-38.
The learned JPs were doing their best to achieve justice in this difficult and distasteful matter. Clearly, Ms Innes relied on specific representations when she entered into the agreement. Clearly, there has been a misrepresentation. Arguably, some entity, of which Ms Robberds is the active alter ego, breached one of the agreement Ms Innes signed. The learned JPs’ decision to hold Quikfund responsible is understandable but, unfortunately, is not supported by the evidence. It is tempting, but not permissible, to craft a decision that fits the justice of the dispute, even though it does not fit the evidence.
Ms Innes did not have a contract with Quikfund. It is clear from the evidence that the individuals who made the representations, did not make those representations on behalf of Quikfund. At best, Quikfund, and/or Mr Spiro and Mr Viertel were the agents of Australian Equipment Rentals, Enterprise, Axis Telecoms or the mysterious “dealer”.
Ms Robberds handed up copies of decisions from the New South Wales Consumer Trader and Tenancy Tribunal[11] and the Federal Court of Australia[12] to support her submission that this was a case of agency, not direct responsibility. The learned JPs erred in not following the reasoning in those cases. The cases do, however, show that these entities are adept at obfuscation and confusion. As always, parties should take care when entering into arrangements that appear to offer something for nothing.
[11] Quikfund (Australia ) Pty Ltd v Hays International College Pty Ltd;
[12]Quikfund (Australia ) Pty Ltd v Prosperity Group International Pty Ltd (In Liquidation) [2013] FCAFC 5.
Leave to appeal should be granted and the appeal allowed. The decision of 26 June 2013 is set aside. Because Enterprise was not a party to the original claim, I cannot order that it meets its offer to refund three months’ rent. Of course, now that she has some clarity about the proper entities involved in this scheme, Ms Innes may want to consider further action. For these proceedings though, the appropriate order is that the claim is dismissed.
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