Schepis v Q M Properties Pty Ltd
[2012] QCATA 197
•12 October 2012
| CITATION: | Schepis and Anor v Q M Properties Pty Ltd [2012] QCATA 197 |
| PARTIES: | Anthony Schepis Coachcode Pty Ltd t/as All Commercial Refrigeration and Air Conditioning Services (Applicants/Appellants) |
| v | |
| Q M Properties Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL103-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 12 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTE OF LIMITATIONS GENERALLY – GENERALLY – where invoice issued in 2003 – where email sent in 2007 which referred to payment of invoice – whether claim for payment statute barred – whether 2007 email an acknowledgement of debt – whether claim otherwise valid Limitation of Actions Act 1974, s 10 Baycrown Pty Ltd v Ivi Pty Ltd [2007] HCATrans 107 |
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 (‘QCAT Act’).
REASONS FOR DECISION
In 2003, Q M Properties Pty Ltd lent $200,000 to IVI Pty Ltd. The loan appears to have been associated with the provision of funds for legal expenses to a former Premier of Queensland but, as the learned Magistrate who heard the matter observed, it is beset with complicated inter-company relations and other dealings and transactions.
In short Mr Schepis, a director of Coachcode Pty Ltd, says that he and Coachcode guaranteed that loan on the condition that his expenses, associated with the provision of the guarantee, were paid by Q M.
Coachcode issued a tax invoice for Mr Schepis’ expenses in the amount of $3,821.66 on 24 February 2003. The invoice was never paid by Q M but it was not until September 2011 that Mr Schepis filed a claim in the minor civil disputes (MCD) jurisdiction of the tribunal claiming $3,821.66 plus interest.
Confusion surrounds that claim and this application for leave to appeal. Within QCAT the matter has been recorded, throughout, as ‘Coachcode Pty Ltd v Q M Properties Pty Ltd’ but the original MCD application appears to show both Mr Schepis and Coachcode as applicants – Coachcode trading under the name ‘All Commercial Refrigeration and Air Conditioning Services’. Mr Schepis has used both names, also, in his application to the Appeal Tribunal. It appears that the original proceedings were intended to be brought by both Mr Schepis and Coachcode, as has the present application.
That confusion is compounded when it is observed that the original MCD application named a Mr Ian Russell, an officer of Q M, as the respondent – but, also, named that company. For reasons that follow, while that confusion is to be regretted, it ultimately makes no practical difference: whatever the identity of the correct applicant(s) or respondent(s), the claim could not have succeeded and the application for leave to appeal must be refused.
On 22 March 2012 a Magistrate, sitting as a QCAT adjudicator, dismissed the original claim on the basis that the 6-year time limit for bringing proceedings under the ‘statute of limitations’[1] had expired.
[1] Limitation of Actions Act1974, s 10.
Mr Schepis, in submissions to the Appeal Tribunal that he signed (but which, again compounding the confusion noted earlier, are headed ‘Coachcode Pty Ltd v Q M Properties Pty Ltd’) says that the learned Magistrate erred at law because the debt was not payable until 2007, so the time for bringing proceedings does not expire until 2013.
He also says that the learned Magistrate was biased, did not consider the evidence and that he was afforded given natural justice in the proceeding.
Because this is an appeal from a decision of the tribunal in its MCD 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?
Error of law
Mr Schepis’ argument that the debt was repayable in 2007 rather than 2003 centres on an email from Q M Properties to Coachcode dated 13 October 2003, which states:
Tony
Ian has advised he believed the payment would be paid upon outcome of the matter and Geoff has advised that this has not happened to date. The invoice will be paid after the outcome is known. Thanks
Janice Bogaart
Q M Properties Pty LtdMr Schepis says that ‘the matter’ was a property settlement between IVI and Q M that was not resolved until 2007, when the High Court refused leave to appeal in an action involving IVI[2].
[2] Baycrown Pty Ltd v Ivi Pty Ltd [2007] HCATrans 107.
Until he received that email, Mr Schepis believed, and acted, as if the debt was payable on demand. His assertion that the email put back the date for payment to 2007 can only be correct if Coachcode had agreed to vary the agreement and stay its hand for payment. It did not do so. By email of 17 October 2003, Mr Schepis disputed the advice in the email from Ms Bogaart and said, specifically:
Please remit the amount A.S.A.P.
There was, then, sufficient evidence for the learned Magistrate to find that the cause of action arose in 2003. Coachcode had 6 years to bring the action. Its delay in doing so has an explanation in the 2003 email from Ms Bogaart, but the explanation does not alter the legal position. The learned Magistrate was not in error and leave to appeal should be refused.
The application for leave to appeal should fail for other reasons. The weight of evidence suggests that IVI is the entity responsible for the debt, not Q M Properties.
Mr Schepis conceded that, initially, he directed his invoice to IVI, not Q M Properties. It was not until 2011 that Mr Schepis changed the invoice to Q M Properties, but that act alone is not enough to make Q M Properties liable for the debt. There is an internal memorandum from IVI dated 24 October 2003 authorising Q M Properties to pay accounts, but it is clear from the document that Q M Properties was to pay those accounts on IVI’s instruction.
A settlement agreement reached at mediation on 8 November 2011 states that:
Q M Properties will assist Coachcode Pty Ltd in any reasonable way to persue (sic) IVI Pty Ltd …to have the money that is owed to Coachcode Pty Ltd paid. Coachcode Pty Ltd …will accept….from Ivy Pty Ltd or its directors.
In other words, Q M Properties was acting only as IVI’s agent. In the email of 2003, Q M Properties does not undertake personal responsibility for the debt; it simply says that the invoice “will be paid”. The correspondence from 2005 between IVI and Q M Properties shows that there was a dispute between those two entities, but it does not provide any support for an argument that Q M Properties took responsibility for IVI’s debts.
Lack of natural justice, bias
It is necessary to say something about these issues even though, because of the substantive issues I have identified, they will not affect my decision to refuse leave to appeal.
In a previous decision of this Appeal Tribunal it was said that the test for bias[3] is whether a reasonable observer, aware of the facts, could properly suspect a lack of impartiality or feel a reasonable apprehension that the Tribunal might not bring fair and unprejudiced views to the resolution of the question. I have read the transcript and listened to the audio tape of the hearing. There is nothing to suggest that the learned Magistrate lacked impartiality.
[3] Zanetti & Anor v Pierpoint(No 2) [2011] QCATA 334, [24].
Mr Schepis complains that the learned Magistrate did not look at the evidence and made her decision without hearing from him. In particular, Mr Schepis says that the learned Magistrate did not look at emails he handed to her; but it is clear from the transcript that she did look at the emails[4] before making a final decision. In all other respects, too, the transcript reveals that she properly apprised herself of the evidence upon which he sought to rely.
[4] Transcript page 17, line 11.
Mr Schepis also complains that the Magistrate “yelled” at him. The audio recording reveals that she did raise her voice to him, in a way which could have been intimidating.
The MCD jurisdiction is a very busy one and QCAT Adjudicators and Magistrates sitting in it are often under pressure to deal with a large number of matters, in which parties are waiting. Most parties are self-represented and will not always present their cases in an efficient, focussed way. These elements will put pressure upon the tribunal and that pressure may, from time to time, manifest in expressions of exasperation or even anger on the part of tribunal members, directed at parties or in terms which may lead them to believe they are the object of the member’s annoyance. These incidents are regrettable and are, of course, to be avoided.
That said, nothing in the transcript or the recording suggests the learned Magistrate’s conduct reflected bias or prejudice against Mr Schepis or, importantly, that her decision might have been affected or coloured by the incidents when she raised her voice. Her decision was one which accorded with the weight of evidence, and was reasonably open to her. It follows that whatever discomfort or concern Mr Schepis might have felt, he was not denied a fair hearing with the necessary elements of procedural fairness.
For these reasons, his application for leave to appeal must be refused.
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