Sovran White International Ltd v Dominion Pacific Finance Pty Ltd

[2021] QCATA 73

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sovran White International Ltd v Dominion Pacific Finance Pty Ltd [2021] QCATA 73

PARTIES:

SOVRAN WHITE INTERNATIONAL LTD

(appellant)

v

DOMINION PACIFIC FINANCE PTY LTD

(respondent)

APPLICATION NO/S:

APL265-20

ORIGINATING APPLICATION NO/S:

MCDO218/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

16 June 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave to appeal is refused.  This means the appeal fails.

2.   The stay in the Appeal Tribunal’s order of 9 November 2020 is lifted.  That means that the decision in MCDO218/20 (Southport) is now operative.

CATCHWORDS:

​APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where Adjudicator found that there were unpaid consultancy fees – where on appeal, it is said that the Adjudicator should have referred the claim to arbitration as required by the consultancy agreement – where the appellant took a step in the proceedings before requesting a referral to arbitration - whether any reasonably arguable grounds of appeal​ 

Commercial Arbitration Act 2013 (Qld), s 8

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 45

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

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. An Adjudicator ordered Sovran White International Ltd (then known as China Magnesium Corporation Ltd) to pay Dominion Pacific Finance Pty Ltd $25,000 plus interest and the filing fee.  This was for unpaid consultancy fees.

2. Sovran now appeals against the order.

3. Sovran did not attend the hearing before the Adjudicator.  After reasonable attempts to contact Sovran by telephone on the day of the hearing the Adjudicator decided to hear it in Sovran’s absence.  It is not suggested in this appeal that this was unfair.

4. Sovran’s defence to the claim was before the Adjudicator in the form of a statement signed by two directors and affidavits made by each of those directors.  The relevant points made in those documents were that the consultancy services had not been provided, indeed that the project for which they were required had not even commenced, hence the fees claimed were not due.  It was also said that there was an arbitration clause in the agreement and that the claim ought to be referred to arbitration.

5. It was common ground that the consultancy agreement was in place and provided for a monthly consultancy fee, and that those fees had been paid for March, April and May 2019 but not June.  At the hearing the Adjudicator put the main points made on behalf of Sovran to Dominion’s witness and was satisfied from the answers that the claim was proved.

The appeal

1. In this appeal, it is said that the Adjudicator should not have dealt with the claim but should have referred it to arbitration as provided in the consultancy agreement.  The submissions on appeal go so far as to suggest that the tribunal had no jurisdiction to deal with the claim at all because of the arbitration agreement.

2. There are also three other grounds of appeal.  One is that it was wrong for the Adjudicator to find that consultancy services had been provided bearing in mind the project for which they were required had not commenced, that the Adjudicator was wrong to find that the agreement had not been terminated because that was not Sovran’s case, and that the invoice for the consultancy was defective.

3. In its submissions of 13 October 2020 Sovran has included some information which was not before the Adjudicator.  It appears that Sovran would seek to rely on this information to persuade the Appeal Tribunal to reverse the Adjudicator’s decision.  The difficulty with this is that an appeal is not normally an opportunity to introduce fresh evidence.  The Appeal Tribunal gave directions on 31 August 2020 requiring any party who wished to introduce fresh evidence before the Appeal Tribunal to make a formal application to do so together with submissions about why the fresh evidence was not available to the tribunal below, why the fresh evidence is important and why it should be accepted.  This has not been done.  In any case it seems that the information now submitted would have been available at the hearing before the Adjudicator.  In the circumstances it would be wrong for me to consider it.

Arbitration clause

1. The arbitration clause was in these terms:

   ARBITRATION

   Any dispute controversy or claim arising out of or in relation to this Agreement or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the commercial arbitration law of the State set out in Schedule 1.  Each party may in arbitration proceedings be represented by a duly qualified legal practitioner.  The arbitrator shall in the conduct of the arbitration proceedings be bound by the rules of evidence.

2. Schedule 1 specified the State as Queensland.

3. The Queensland law which applies, and which is based on model international law, is in the Commercial Arbitration Act 2013 (Qld).

   8 Arbitration agreement and substantive claim before court (cf Model Law Art 8)

   (1)   A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party’s first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

   (2)   Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

4. Were section 8 to be engaged one issue would be whether the tribunal, when hearing a minor civil dispute, is a ‘court’ for the purpose of the section.

5. But it seems to me that section 8 is not engaged. This is because Sovran’s ‘first statement on the substance of the dispute’ made no mention of the arbitration clause. A Response is required under the tribunal rules answering the applicant’s assertions in the application where there is an application for recovery of a debt as there was here.[1]  Sovran filed its Response on 14 April 2020.  In the Response, Sovran merely disputed the allegations made by the applicant and said ‘please refer to attached Form 7’.  Since no document was attached this seems to refer to the Form 7 itself.  Since there was no request in the Response to refer the matter to arbitration, this means that Sovran submitted to the jurisdiction of the tribunal and could not later rely on the arbitration clause to require the tribunal to refer the claim to arbitration.

   [1]Rule 45 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

6. It is suggested in this appeal that because of the arbitration clause the tribunal had no jurisdiction to hear the claim.  But this is incorrect.  In the absence of any effective statutory provision, parties cannot decide that a court or tribunal does not have the jurisdiction given to it by statute.

Other grounds of appeal

1. The point made on appeal that the Adjudicator should have found that no services had been provided in June under the agreement because the project had not commenced, was the same point as made before the Adjudicator.  It is clear however that the Adjudicator had sufficient evidence to support the finding that the fees claimed in the invoice were due and payable.

2. It is true that Sovran did not say in response to the claim that the consultancy agreement had been terminated, but the real issue was whether any services had been provided in June and the Adjudicator was entitled to find that they had been. 

3. The issue first raised on appeal, about the invoice being defective is not a good one because there were no formal requirements for the invoice in the consultancy agreement, and by clause 12.1 it was said to be “entire”.  This means there is no room for any other agreement about the content of the invoices between the parties.

Conclusion

1. In the circumstances it cannot be said that any of the grounds of appeal have any merit.  Leave to appeal is refused.  That means the appeal fails.