Rowley v Abacus Associates Pty Ltd
[2013] QCATA 328
•15 July 2013
| CITATION: | Rowley v Abacus Associates Pty Ltd [2013] QCATA 328 |
| PARTIES: | Mr Graham Rowley t/as Australian Poker League – QBC (Applicant/Appellant) |
| v | |
| Abacus Associates Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL166 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 15 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 18 March 2013 is set aside. 4. Mr Martin Harvey, Mr Michael Jackson and Mr Graham Rowley, t/as Australian Poker League – QBC will pay Abacus Associates Pty Ltd $851.38 by 4:00pm on 29 July 2013. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where accountant acted as debt collector – where accountant charged fee for debt collection – where accountant not a licensed commercial agent – whether accountant entitled to charge for debt collecting service – whether grounds for leave to appeal Property Agents and Motor Dealers Act 2000 (QLD) ss 337, 339, 346, 354 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.
REASONS FOR DECISION
Abacus Associates Pty Ltd did accounting work for the Australian Poker League, a partnership. It also did debt recovery work for the partnership. It rendered bills but the partnership failed, or refused, to pay invoices totalling $5,888.58. Abacus filed a claim in the tribunal for the unpaid invoices. The tribunal ordered the partners to pay that sum plus interest and costs.
Mr Rowley, one of the partners, wants to appeal that decision. He says that Abacus was not a licensed commercial agent under the Property Agents and Motor Dealers Act 2000 (Qld) (“Property Agents Act “) and, therefore, cannot claim fees for this service.
Abacus says that it was engaged to provide professional accounting services. It says that it discovered the unpaid accounts when performing its accounting work and, therefore, it was the appropriate party to lodge the claims in the tribunal to recover those debts. It says that its attendance at the tribunal was as an expert witness, not as a collection agent.
Abacus says that its debt recovery work was ancillary to its core work of providing professional accounting services. It says that the purpose of the Property Agents Act is to protect the public against aggressive and vexatious debt collectors and is not designed to prevent clients paying fees for services they have requested.
Abacus also says that Mr Rowley is estopped from disputing the invoices and that, if he received the benefit of the work without paying for it, he would be unjustly enriched. It says that the doctrine of laches should operate to prevent Mr Rowley making this late claim.
Finally, Abacus says that Mr Rowley did not comply with my earlier orders and, therefore, his application should be dismissed without further order.
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.
Abacus has filed fresh evidence with its response to Mr Rowley’s submissions. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[5] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Abacus have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[6]
[5] Sections 137 and 138 QCAT Act.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Mr Rowley did not raise the Property Agents Act submission at the initial hearing, or in any material filed before then. It is a novel argument and, therefore, Abacus could not be expected to file material that responded to an argument that was not made. The emails between Mr Prescott of Abacus and Mr Martin from the partnership appear to be credible. I am not so convinced by the letter from Mr Jackson “to whom it may concern”. It is undated and seems a little self-serving. However, the essence of Mr Rowley’s argument is not whether Abacus was engaged to do debt collecting but whether it was licensed to do debt collecting. The fresh evidence does not help me decide this issue. As the fresh evidence will not have an important impact on the result of the case, I will not allow it. The application for leave to appeal shall be determined on the basis of the evidence before the learned Adjudicator.
Section 339 of the Property Agents Act sets out what the holder of a commercial agents licence may do as agents for others for reward. A commercial agent may collect or request payment of debts.[7] It may also serve any application or process.[8] There is no doubt that Abacus performed these duties for the partnership.
[7] Property Agents and Motor Dealers Act 2000 s 339(1)(b).
[8] Section 337(1)(c).
A person must not perform an activity that may be done under a commercial agent’s licence unless the person holds a licence or is otherwise permitted under the Property Agents Act or another Act.[9] Abacus does not hold a commercial agent’s licence. I can find no other Act that would permit Abacus to do this work.
[9] Section 354(1).
A person is not entitled to sue for, or receive or retain, a reward or expense for commercial agent work if the person does not hold a commercial agent’s licence.[10]
[10] Section 346(1).
Abacus argues that it was not acting as a commercial agent, but that debt collecting was an ancillary part of its accounting work. The tribunal has rejected a similar argument in relation to an insurance agent.[11] The Property Agents Act is clear on its face and there is no reason to read down the operation so that entities that perform debt collecting as an extra service outside their core business are not caught by the Act. As Abacus points out, the purpose of the Property Agents Act is to protect the public. Unless Abacus can point to some other Act which performs the same function for accountants, and it has not, I see no reason why the public should not enjoy the protection of the Property Agents Act when accountants conduct debt collecting services.
[11]Elders Insurance Limited v Insurserv Australia Pty Limited and Anor [2011] QCAT 656.
I accept that Abacus did other work for the partnership. The Property Agents Act does not affect its ability to charge for that work.
Once the provisions of the Property Agents Act apply, the doctrines of promissory estoppel, unjust enrichment and laches do not apply. As I have already mentioned, the Act prohibits a charge for that work. Equitable remedies cannot override a specific legislative provision.
I reject the argument that Mr Prescott appeared as an expert witness in the tribunal hearings for which Abacus charged. Paragraph 4 of Practice Direction 4 of 2009 explains that an expert owes a duty to assist the tribunal that overrides any obligation to the client. If Mr Prescott was preparing, filing and advocating on the hearing of the claim, he could not also be an expert. He did not provide a copy of any expert report that he submitted to the tribunal and it is difficult to see why expert evidence was necessary in a simple debt collection claim.
Abacus says that Mr Rowley’s application for leave to appeal should be dismissed because it did not receive a copy of all Mr Rowley’s submissions. Abacus received Mr Rowley’s submissions on 21 May 2013. Page 2 was missing. Abacus had until 18 June 2013 to file submissions in response. Abacus’ lawyers contacted the tribunal on 12 June asking for a copy of the missing page, which was provided the same day. I would have thought that, if the missing page was so important, Abacus might have asked for a copy much earlier than a week before its submissions were due. Mr Rowley substantially complied with my directions. Abacus knew the basis of Mr Rowley’s claim and there is no suggestion that it was taken by surprise. The omission of page 2 is not a reason to dismiss Mr Rowley’s application for non-compliance.
It is understandable that the learned Adjudicator erred in not identifying that Abacus should have been licensed. Mr Rowley did not raise it at the hearing. The Property Agents Act is a large and cumbersome piece of legislation. Adjudicators who sit in the minor civil disputes jurisdiction know well those parts of the Act that apply to residential tenancies but they do not routinely have to consider the provisions about commercial agents. The minor civil disputes jurisdiction is one where matters are heard and decided in very short time frames. The learned Adjudicator delivered his decision at the conclusion of the evidence. He did not have the luxury of time in which to conduct a forensic examination of all the law that may, or may not, have applied. However, the learned Adjudicator was in error. Leave to appeal should be granted and the appeal allowed.
The learned Adjudicator’s decision should be set aside. Abacus is entitled to payment for work that was not debt collecting. From the invoices Abacus submitted with its claim, I calculate that entitlement as follows:
Invoice no. Detail Amount 00001267 Accounting for Oct 2010 375.00 00001191 Enter 2010 transactions from bank statements 37.31 00001191 Lodge 3rd qtr BAS 80.00 Total 492.31 GST 49.23 Total $541.54
I note that Abacus passed on legal fees for the debt collecting. I do not have copies of those bills. I do not have any contemporaneous or credible evidence that the partnership agreed to pay those costs. Without that evidence, I am not persuaded that the partnership should reimburse Abacus for those costs.
Abacus is entitled to payment of $541.54. It is also entitled to interest of $126.84 (10% for 855 days), filing fee ($95) and service costs ($88), a total of $851.38. I order accordingly.
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