Sauer v Nuheara Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sauer v Nuheara Ltd [2023] QCATA 155

PARTIES:

WARWICK SAUER

(appellant)

v

NUHEARA LTD

(respondent)

APPLICATION NO:

APL209-22

ORIGINATING APPLICATION NO:

MCDO125 of 2022

MATTER TYPE:

Appeals

DELIVERED ON:

5 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member PG Stilgoe OAM

ORDERS:

1.   Leave to appeal is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal dismissed an application for alleged miscalculation of share purchase price under a share purchase plan – whether the dispute falls within the minor civil dispute jurisdiction

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal dismissed an application for alleged miscalculation of share purchase price under a share purchase plan – where the Respondent referenced ‘without prejudice’ communications in submissions – whether the tribunal erred in considering ‘without prejudice’ letters.

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the tribunal was alleged to have made an error of facts and law in dismissing an application for alleged miscalculation of share purchase price under a share purchase plan – whether a substantial injustice

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 92 ALR 193

Financial Advisers Australia v Mooney [2016] QCATA 181
Pickering v McArthur [2005] QCA 294

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13, 28; schedule 3.

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

1. Nuheara Limited is a wearable hearing technology company, trading on the Australian Stock Exchange. In May of 2020, Nuheara made an offer to current shareholders to enter into a Share Purchase Plan (SPP) whereby current shareholders could purchase additional capital in the company.

2. Warwick Sauer applied through the SPP and Nuheara issued 588,235 shares for his consideration of $10,000, at a price of $1.70 per share. Mr Sauer says he should have received 625,000 shares at a price of $1.60 per share. This shortfall, he claims, has caused him a loss of $661.77.

3. Nuheara explains that the difference is due to Exception 5 of ASX Listing Rule 7.2 prohibiting the shares being issued at less than $1.63. Nuheara says it rounded up the share price to $1.70.

4. Mr Sauer filed an application for minor civil dispute. The learned Adjudicator ordered that the matter be dismissed.

5. Mr Sauer has appealed that decision, on the following grounds:

   (a)denial of natural justice by permitting and accepting without prejudice communications; and

   (b)errors of fact and law by concluding that the shares were rightly rounded to $1.70 under Exception 5.

A threshold problem

1. Although it was not mentioned in the learned Adjudicator’s decision, nor in any of the filed material, there is a fundamental problem with Mr Sauer’s application: the Tribunal did not have jurisdiction to determine his claim.

2. Schedule 3 of the Queensland Civil and Administrative Tribunal Act