Robinson v Lowe
[2011] QCATA 278
•12 September 2011
| CITATION: | Robinson v Lowe [2011] QCATA 278 |
| PARTIES: | Mr Richard Yore Robinson |
| v | |
| Mrs Robyn Denise Zraikat (nee Lowe) |
APPLICATION NUMBER: APL252-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 12 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where agreement to transfer business interest – whether payment due under agreement – interpretation of the agreement – whether grounds for leave to appeal |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Robinson and Mrs Zraikat were joint investors in a restaurant in Sydney. Mr Robinson contributed $119,000 and Mrs Zraikat contributed $21,000. The business did not trade well so neither of them received any return on their investment. In March 2010, Mrs Zraikat agreed to transfer her interest in the business to Mr Robinson. The written agreement recorded that Mrs Zraikat would accept:
1. $3,150 cash now and if 15% of the net funds of the Company/Trust following the sale of the business exceed $3,150 the additional dollars, limited to $21,000, will at that time be paid to me.
2. This is in exchange for you releasing the Company/Trust from all its liabilities to you and in exchange for the transfer of your share/units.
Mr Robinson paid Mrs Zraikat $3,150 and no more. After the sale of the company, there was approximately $70,000 cash after expenses and creditors, but excluding the repayment of the initial investments. Mrs Zraikat brought a claim for 15% of the remaining amount. The learned Adjudicator found for Mrs Zraikat and ordered that Mr Robinson pay $7,538.
Mr Robinson has appealed the learned Adjudicator’s decision. The basis of the application seems to be, simply, that the learned Adjudicator drew the wrong conclusion from the facts.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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?
The learned Adjudicator was faced with the task of interpreting the meaning of “net funds of the Company/Trust”. As the learned Adjudicator identified, the written agreement between the parties left much to be desired. The documents generated both before and after the agreement was signed do not offer very much assistance.
Mr Robinson contended that the phrase meant net funds after payment of all expenses, including repayment of deferred interest and his loan account. If that interpretation is accepted, then there were no net funds that could have been distributed to Mrs Zraikat.
Mrs Zraikat contended that the phrase meant net funds after payment of all expenses and before repayment of deferred interest and any loan accounts.
The learned Adjudicator considered the parties’ evidence carefully. She found that Mr Robinson’s payments to himself of unpaid interest on Mrs Zraikat’s loan account were preferential payments. That accords with her comments during the hearing that the sale agreement did not have the effect of transferring Mrs Zraikat’s right to interest to Mr Robinson or that it should be paid in priority[1]. It is implicit in the learned Adjudicator’s decision that she interpreted “net funds of the Company/Trust” as meaning net funds before consideration of the loan accounts.
[1] Transcript page 14, lines 27-27, 40-41.
That is the only interpretation that fits logically with the facts at the time the agreement was made. If Mrs Zraikat was to receive 15% of funds net of the loan accounts, then there was never going to be a further distribution to her and the agreement was of no utility. The parties effectively agreed to accept a pro rata repayment of their loan accounts at the rate of 85% to Mr Robinson and 15% to Mrs Zraikat, maintaining the relative risk but leaving Mr Robinson free to market and sell the business as he saw fit.
There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts before her when interpreting the agreement.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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