Sahay v Scotsco Pty Ltd t/as Focus Legal Recruitment and Focus Executive Search
[2023] QCATA 104
•4 August 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Sahay v Scotsco Pty Ltd t/as Focus Legal Recruitment and Focus Executive Search [2023] QCATA 104
PARTIES:
RODNEY SAHAY (applicant/appellant)
v
SCOTSCO PTY LTD T/AS FOCUS LEGAL RECRUITMENT AND FOCUS EXECUTIVE SEARCH (respondent)
APPLICATION NO/S:
APL371-22
ORIGINATING APPLICATION NO/S:
MCD01339/21
MATTER TYPE:
Appeals
DELIVERED ON:
4 August 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Acting Senior Member Fitzpatrick
ORDERS:
The application for leave to appeal or appeal filed by Rodney Sahay on 12 December 2022 is refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – OTHER CASES – where the appellant entered into a contract with the respondent for the placement of a solicitor with a portable practice – where the introduced solicitor was subject to a restraint of trade – where the introduced solicitor has remained in the employment of the appellant – where the appellant was ordered to pay the placement fee – where the appellant argues that a compromise of the claim was agreed between the parties – whether the adjudicator erred in finding that there was no evidence of an agreement that served as a compromise of the claim for payment of the full placement fee
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i), s 147
Barry v City West Water [2002] FCA 1214
Cachia v Grech [2009] NSWCA 232
Clark v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Kostas v HIA Insurance Services Pty Ltd (2010) 21 CLR 390
Masters v Cameron (1954) 91 CLR 353
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The appellant Mr Sahay carries on business as a law firm, Stephens & Tozer Solicitors.
The respondent Scotsco Pty Ltd (‘Scotsco’) carries on business as a recruitment and placement company. Scotsco was represented at the hearing below and in the appeal proceeding by its Director Mr Dhu. Mr Sahay and Mr Dhu were the people dealing with each other in relation to the matter the subject of the claim.
Mr Sahay entered into a contract with Scotsco for the placement of a solicitor with a portable practice. The solicitor introduced to Stephens and Tozer by Scotsco was subject to a restraint of trade, limiting his ability to introduce clients of his previous firm to Stephens and Tozer. Nevertheless, the solicitor has remained in employment at Stephens and Tozer. The fact of the restraint of trade was the cause of dissatisfaction with the services provided to Mr Sahay. Mr Sahay paid the first instalment of the agreed placement fee but refused to pay the balance.
Scotsco commenced a minor civil debt proceeding in the Tribunal below seeking the placement fee of $13,490.00 together with the relevant filing fee in a total amount of $13,848.00.
Mr Sahay’s defence to the claim is that a compromise of the claim by Scotsco was agreed between the parties such that Mr Sahay would pay the sum of $3,066.00 plus GST with the agreement to be recorded in a Deed of Settlement.
On 26 October 2022 Mr Sahay was ordered to pay Scotsco the sum of $13,848.00.
Although not relevant to this proceeding, it appears that Mr Sahay has since commenced proceedings in the Magistrates Court seeking damages for breach of contract or misrepresentation from Scotsco.
The Adjudicator delivered oral reasons for the decision and found that the placement agreement was fulfilled in that the solicitor in question was recruited and remains in employment with Stephens and Tozer. The Adjudicator noted that no attempt was made to terminate the solicitor’s employment and seek a replacement candidate from Scotsco, as provided for in the recruitment agreement. The Adjudicator found that there is no evidence that Mr Dhu set out to mislead Mr Sahay or deliberately did not disclose information.
The Adjudicator found:
(a)on 26 November 2021 Scotsco offered by email to settle the dispute on a without prejudice basis.
(b)On 1 December 2021 Mr Sahay rejected that offer and made a counter-proposal to pay $3,066.00 plus GST with the offer open only until 3 December 2021. I note this email was provided to the Tribunal by Mr Sahay as an attachment to an affidavit filed 21 July 2022, after the hearing of the matter. The Adjudicator appears to have taken it into account in his later decision.
(c)The counter-proposal lapsed.
(d)On 6 December 2021 Mr Dhu enquired: “how long would it take to be paid if the without-prejudice offer of $3,066 ex GST were accepted?”
(e)There is no evidence as to the time before payment could be made and the Adjudicator found that in any event such a proposal would have to be accepted. The Adjudicator inferred that a timeframe for payment was important given how long the dispute had been on foot.
(f)Despite Mr Sahay asserting that Mr Dhu agreed to settle the dispute for $3,066.00 plus GST on 7 December 2021, there was no agreement on that date.
(g)Contrary to the assertion of Mr Sahay and consistent with the denial of any agreement to settle the claim by Mr Dhu, no agreement to settle the claim was made. This was found to be supported by the terms of the 10 December 2021 email from Mr Dhu to Mr Sahay: “…In the interests of averting needless protraction – perhaps you’d be open to forwarding an appropriate deed of settlement as you’ve suggested containing terms you’re approving of and in a form you’re prepared to sign? This should progress the resolution of the matter positively and attentively.”
The Adjudicator found that there is evidence the parties were amenable to negotiating a settlement, but there is no evidence of an agreement, oral or written that serves as a definitive agreement. He found that the 10 December 2021 email does not suggest any agreement had been reached prior to that date. Although the email exchange between the parties on 7 December 2021 was before the Tribunal, having been filed by Scotsco on the morning of the hearing on 18 July 2021 and one of the 7 December 2021 emails sent at 4.16pm was filed by Mr Sahay on 13 July 2021, the Adjudicator did not expressly refer to those documents.
Mr Sahay seeks to rely on additional evidence. His affidavit filed in the appeal proceeding on 14 February 2023 misstates the date of the attached emails, but nevertheless he seeks to ensure the 7 December 2021 exchange, and 10 December 2021 emails are before the Appeal Tribunal, together with a text message from Mr Dhu to Mr Sahay dated 13 December 2021. Of this material, only the text message is in fact additional evidence.
Although not expressly referred to by the Adjudicator, an email dated 7 December 2021 sent at 3.56 pm appears to be a response to the 6 December 2021 enquiry from Mr Sahay: “Again, on a without prejudice basis, upon the production of an appropriate deed of settlement and release which is then duly executed payment will be made.” Mr Dhu responded at 4.16pm: “…Open to a Without Prejudice basis and with an appropriately prepared invoice. Never needed a deed of settlement before – why now?”
The Adjudicator dealt with the authorities referred to him by Mr Sahay. He found that the decision of Stellard Pty Ltd v North Queensland Fuel Pty Ltd[1] could be distinguished on the basis that no agreement to be bound by any terms was reached between the parties.
[1][2015] QSC 119.
In all the Adjudicator found that Mr Sahay received the benefit of the contract with Scotsco, and no compromise of the claim for payment of the full placement fee was agreed between the parties.
Leave to appeal
An appeal from a decision of the Tribunal in a proceeding for a minor civil dispute may only be made with the leave of the Appeal Tribunal.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Leave will usually be given if it is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error on the part of the Tribunal at first instance which needs to be corrected.[3]
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232, [13].
Grounds of appeal
Mr Sahay does not characterise his grounds of appeal as an error of law, fact or mixed fact and law.
Mr Sahay’s contention is that the dispute resolved prior to hearing with all terms of the settlement agreed except for formal execution of a Deed of Settlement. He seeks that the Appeal Tribunal re-consider the 26 October 2022 decision.
He asserts relying on the exchange of emails and the text referred to earlier, together with two further texts dated 12 December 2021 and 20 December 2021 following up the whereabouts of a Deed, that the settlement amount was agreed.
Mr Sahay says that the Adjudicator did not set out the basis for distinguishing Stellard’s case. Further the agreement falls within the first category of agreements referred to in Masters v Cameron[4] and that the agreement can be enforced regardless of whether the contemplated formal documents came into existence or not. Mr Sahay also relies on Barry v City West Water[5] a case where the intention of negotiations was to settle a matter and the matter resolved by agreement.
[4](1954) 91 CLR 353.
[5][2002] FCA 1214.
Application to rely on additional evidence
As noted earlier, the text message dated 13 December 2021 appears to be additional evidence. In that text message Mr Dhu asks Mr Sahay to forward a deed of settlement with the terms suggested and in a format Mr Sahay is prepared to sign. The application to rely on additional evidence also refers to text messages of 20 December 2021 and 21 December 2021, wherein Mr Dhu is asking when the Deed will be sent, and in the other text saying: “…We should seek to square away on this today.” Those texts appear to have been before the Tribunal below but not clearly dated.
Mr Sahay does not address in his application that the evidence could not have been obtained with reasonable diligence for use at the trial; the evidence, if allowed, would probably have an important impact on the result of the case and that the evidence is credible though it need not be incontrovertible.[6]
[6]Clark v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.
Clearly the additional evidence sought to be relied upon by Mr Sahay was available at the time of the hearing. No submissions are made as to how the additional text messages demonstrate that there was a clear offer and acceptance of the terms of any agreement. They do not on their face reveal any offer and acceptance of terms. It is unnecessary to address the other consideration. The application to rely on additional evidence is refused.
Consideration
For the reasons that follow I conclude that there was no error by the Tribunal in deciding that Scotsco’s claim had not been compromised and that the agreed placement fee was owed to it by Mr Sahay.
In my view Mr Sahay alleges errors of mixed fact and law. Accordingly, the application for leave to appeal or appeal will be dealt with under s147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by way of rehearing on the material before the Tribunal below with due respect for the findings of fact of the primary Tribunal.
I proceed on the basis that Mr Sahay asserts an error of fact in that the Adjudicator found that the email and text exchanges did not contain an offer to compromise the claim and an acceptance of that offer. As to an error of law I proceed on the basis that Mr Sahay asserts an error of law in the Adjudicator failing to find a concluded compromise agreement capable of enforcement without the need for formal documentation in a Deed.
The Adjudicator analysed the exchanges and concluded on the wording that there was no definitive agreement. The Adjudicator did not misconstrue the wording of the exchanges. The exchanges do not contain any statement by Mr Dhu to the effect that the offer by Mr Sahay is accepted. He simply calls for a Deed which sets out the terms proposed by Mr Sahay. I do not consider that is a sufficient basis on which to infer that Mr Sahay’s earlier lapsed offer of settlement is accepted. The calling for a Deed is equally consistent with Mr Dhu’s evidence that he was intending to consider the proposal set out in the Deed. The evidence relied on by the Adjudicator supports his finding of fact. In these circumstances there is no basis to set aside the Adjudicator’s finding.[7]
[7]Kostas v HIA Insurance Services Pty Ltd (2010) 21 CLR 390.
Further on the basis of the evidence that there is no offer and acceptance of a compromise proposal, I cannot conclude that there has been an error of law in failing to find an enforceable compromise agreement.
I accept the submissions made by Scotsco that the Adjudicator distinguished Stellard’s case, noting in that case that the acceptance email contained the language of acceptance: “We accept the below offer…”. There is no language of acceptance from Mr Dhu in any exchange with Mr Sahay. The Adjudicator had a proper basis on which to distinguish the case. As to Masters v Cameron[8] the Adjudicator was right not to enter into a question of enforceability, because he was unable to find any agreement, whether conditional or not. The same consideration distinguishes the decision of Barry v City West Water.[9]
[8](1954) 91 CLR 353.
[9][2002] FCA 1214.
Determination
There was no error by the Adjudicator in his determination of the claim. Leave to appeal is refused.
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