Sugar Tease Pty Ltd v Whitaker

[2010] QCATA 120

CITATION: Sugar Tease Pty Ltd v Whitaker [2010] QCATA 120

PARTIES:	Sugar Tease Pty Ltd  (Applicant/appellant)
v
Kristy Whitaker (Respondent)

APPLICATION NUMBER:            APL149-10

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   22 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS : 

MINOR DEBT CLAIM – PROCEDURAL FAIRNESS – LEAVE TO APPEAL – where the Adjudicator ordered the appellant pay the respondent an outstanding debt for use of her trademark and design rights – where the appellant alleges that she was denied procedural fairness – whether proceedings tainted by lack of procedural fairness – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009 , s 142(3)(a)(i)

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Whitaker brought proceedings against Sugar Tease Pty Ltd in QCAT’s Minor Civil Disputes jurisdiction claiming that the company owed her outstanding fees for the use of her trademark and design rights. The matter was heard and determined by a QCAT Adjudicator on 20 July 2010, who ordered that the company pay Ms Whitaker the sum of $11,280.00.

1. The company seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3).

1. 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 reasonable prospect of 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?

1. The transcript shows the hearing was relatively short. Ms Whitaker alleged that she designed shoes; that she and her sister were the original directors and shareholders in Sugar Tease Pty Ltd; that both resigned and Ms Patricia Dodt purchased the shares and took a controlling interest in the company; and that the company now owes money to her for the use of a trademark relating to women’s high heel shoes and associated packaging and documents.

1. Ms Whitaker produced a document in which she purported to permit Sugar Tease Pty Ltd to use a trademark in exchange for $6,000.00 to be paid to her on or before 10 February 2010. Ms Whitaker also gave evidence that the company was indebted to her for the use of 20 of her designs, at a set fee of $200.00.

1. The transcript shows the learned Adjudicator accepted this evidence. In doing so he had an exchange (covering several pages of transcript) with Ms Dodt, who was appearing on behalf of the company, in the course of which it became apparent that the company had no assets and was unable to pay its debts – and, also, that Ms Dodt had not personally guaranteed the sums claimed by Ms Whitaker, and any liability for them would only rest in the company.

1. In its application for leave to appeal the company, through Ms Dodt, alleges that the Adjudicator did not give her a fair hearing and, in effect, allowed himself to be unduly influenced by the fact that, because any judgement in Ms Whitaker’s favour could never be satisfied by the company, all of the parties were ‘here…wasting our time’[1].

   [1]Transcript of MCD hearing, 1-16.33

1. While it is true that the learned Adjudicator remarked on several occasions that the hearing was, in effect, pointless because the company had no prospect of satisfying any judgement debt in Ms Whitaker’s favour, it cannot be said that, in doing so, he ignored the evidence before him or made findings which were not reasonably open.

1. In particular, although the ‘agreement’ upon which Ms Whitaker relied was not signed by the company, the learned Adjudicator was entitled to accept it, as he apparently did, as a form of corroboration of her claims. He was also entitled to accept – again, as he apparently did – Ms Whitaker’s evidence that Ms Dodt knew or ought to have known of the obligation when she took an interest in the company; and, Ms Whitaker’s evidence of the other aspects of the transaction.

1. Once these things are appreciated it cannot be said that the learned Adjudicator fell into error, or made some mistake of fact or law which should be set aside. Although he did not give reasons for his decision it is plain from the transcript that in the course of the hearing he accepted Ms Whitaker’s evidence and concluded that she was entitled to the judgement she sought. It cannot be said that those conclusions were without foundation in the evidence; or, that they were against the weight of the evidence.

1. In the circumstances the applicant is unable to point to any reasonably arguable case of error in the decision of the learned Adjudicator, or any question of general importance upon which a decision of the Appeal Tribunal is necessary. For these reasons, the application for leave to appeal is refused.