Taylor v Absolute Trade Supplies Pty Ltd
[2014] QCATA 307
•3 November 2014
| CITATION: | Taylor v Absolute Trade Supplies Pty Ltd [2014] QCATA 307 |
| PARTIES: | Geoffrey Nelson Taylor (Appellant) |
| v | |
| Absolute Trade Supplies Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL369-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 3 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where running credit account – where payment guaranteed by director – where guarantee evidence in writing – where director denies liability as guarantor – where numerous admissions of debt and payment long overdue – whether adjournment should be granted – where adjournment refused as sought only for delay – where no evidence to rebut documentation or existence of debt offered – whether judgment entered for debt in error – whether reasonable prospects of appeal Corporations Act 2001 (Cth), s 601AB Property Law Act 1974 (Qld), s 56 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 93, s 139 Bauskis v Liew [2013] NSWCA 297 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This an appeal by Geoffrey Nelson Taylor (Taylor) against an order of Mr LeMass, Adjudicator, that he pay the present respondent (“Absolute”) the sum of $5,292.30 for the price of goods sold and delivered and interest thereon.
At all material times, Taylor was shareholder and sole director of a company known as Cover Installations Pty Ltd (“Cover”).[1]
[1]Search result, ASIC 21 August 2013.
On 22 August 2011 Cover arranged a monthly credit account with Absolute. The relevant application form was signed by Taylor, and by Paul Roarty (Roarty) who, it appears, was Cover’s manager. Two terms[2] of the credit account read as follows:
The account is to be maintained on strictly thirty (30) days net ... Liability shall be joint and several if there is more than one Proprietor or Applicant ...
In the event the Purchaser is a company, the directors and secretaries named in the application (“the Guarantors”) hereby jointly and severally guarantee to [Absolute] the payment to [it] of all monies payable to [it] by the purchaser. This guarantee shall not be waived by any forbearance to require payment by the Guarantors or the purchaser for any time or any other indulgence intended [sic] by [Absolute] to either the Purchaser or Guarantor.
[2]Clauses 2 and 13.
Absolute’s claim is based on three transactions in July – September 2011. After numerous and fruitless demands for payment, Absolute, its patience exhausted, commenced these proceedings on 17 September 2013.
In view of the fact that Cover was de-registered by ASIC on 13 October 2012[3] it is not surprising that Absolute elected to bring its action against Taylor personally.[4]
[3]Company search report issued by ASIC on 21 August 2013. The de-registration was based on s 601AB of the Corporations Act 2001 (non-lodgement of documents, no reason to believe company carrying on business etc).
[4]Transcript of hearing 31 July 2014 (Transcript) page 4 line 42.
On 6 February 2014, Absolute obtained judgment by default.[5] However, that decision was set aside on 12 June 2014, on the basis of Taylor’s submission that ‘[t]he claim was served on my wife who did not inform me at the time of [sic] service was effected’.[6] It is not now necessary to consider whether that amounted to good service of the initiating process.
[5]QCAT Act s 93.
[6]Application to set aside default decision, filed 30 May 2014. QCAT Act s 139.
On 16 July 2014 the parties were given notice of hearing on 31 July 2014.[7] Twelve days later, on 28 July, Taylor requested an adjournment on the ground that Roarty was too ill to attend the hearing. But in fact both Taylor and Roarty made submissions to the Adjudicator by telephone. In so far as their arguments were coherent, they were directed to the existence of the debt, not the effect of the guarantee.
[7]Affidavit of Ashleigh Milne sworn 16 July 2014.
Taylor’s application for an adjournment was renewed at the hearing on 31 July and was again refused. In all the circumstances the Adjudicator was satisfied that the application was calculated to cause further unwarranted delay.[8] Reasonable decisions on adjournments, and other procedural issues, are not to be lightly set aside.[9] The Adjudicator noted that the alleged debt was of long standing, that the matter was an uncomplicated claim[10], and that, whether or not Taylor was aware of service of the Tribunal’s process in September 2013,[11] he had 8 weeks, at least,[12] to gather his papers and to prepare any defence available to him. One may add that Absolute had been pressing Cover, Taylor and Roarty for payment since October 2011.[13]
[8]Transcript page 21 line 21.
[9]Smith v Gannawarra Shire Council (2002) 4 VR 344 at 346-347; Bauskis v Liew [2013] NSWCA 297 (unrepresented litigant).
[10]Transcript page 5 line 43 (Curtis).
[11]Affidavit of Natasha Hayley Welch sworn 23 September 2013.
[12]Taylor’s application to set aside the default judgment was filed on 30 May 2014.
[13]Communication between Absolute’s then Accounts Director and Roarty 10 October 2011. See “History of Contact”, further referred to below.
The Adjudicator admitted the Credit Account Term and Conditions, and held that it was effective as a guarantee on Taylor’s part. The document appears to satisfy the provisions of the old Statute of Frauds (now embodied in the Property Law Act 1974),[14] and no question of the necessity for a prior demand[15] arises here.
[14]Property Law Act 1974 s 56.
[15]Commercial Bank of Australia Ltd v Colonial Finance, Mortgage, Investment & Guarantee Corporation Ltd [1906] HCA 30; (1906) 4 CLR 57; Commonwealth of Australia v Cornwell (2007) 234 ALR 148; [2007] HCA 16.
Also admitted is a set of diary notes, in which Absolute’s staff recorded numerous communications with Taylor, and particularly Roarty, in the period October 2011 to May 2014. The Adjudicator, as judge of fact, accepted that uncontradicted evidence,[16] as he was entitled to do. The “History” is replete with express and implicit admissions of liability by the company, and hence the guarantor, such as these:
10/10/11: The invoices will be paid by the end of October 2011; 28/11/11: The accounts being “tidied up” (Roarty) and payment will soon follow; 20/1/12 Absolute’s solicitor is told (in response to letter of demand) that payment will be made within one week; 23/3/12: we are refinancing (Roarty) and you will be paid next week (Absolute withholds QCAT action); 2/4/12: waiting for funds, will pay next week; 23/4/12; will settle within a week; 16/5/12: will settle within a week; 20/8/12: Absolute telephones Taylor in person – he will call back by 26.8.12 and arrange payment – 19/8/13 to 29/8/13 4 unanswered calls or emails; 24/2/14 Letter Absolute to Taylor advising of default judgment; 24/2/14: Roarty vague and did not know when debt would be paid.
[16]Transcript page 45 lines 10 – 17.
Asked at the hearing whether he owed the money, Taylor made only an oblique reply: ‘I’m unaware of the details. That’s why I need help from the manager’.[17] Taylor’s response to the Adjudicator’s reference to the “History of Contacts” – ‘I’ve never spoken to them’[18] – is contradicted by the “History’s” entry for 16 May 2012.[19]
[17]Ibid page 10 lines 41 – 42.
[18]Ibid page 45 line 21.
[19]“Natasha [Welch] found Geoff’s number and called him, he said he would call back on Monday 26th August and would arrange payment”.
At the hearing Absolute was represented by its Director of Sales, Gordon Christopher Curtis (Curtis), and, as noted above, Taylor and Roarty were heard by audiolink. Material tendered by Curtis included copies of the subject accounts, the Credit Account Terms and Conditions, correspondence, and diary notes entitled “History of Contact”, of which more presently. No objection was taken to the admissibility of those documents. I discern no error in their acceptance. The lengthy oral contributions by Taylor and Roarty were directed to the issue of an adjournment, with no evidence in rebuttal of the substantive claim.[20] A vague suggestion of a counterclaim was raised at the hearing, but there is nothing about it in the “History”. Curtis said that he had never heard of it before.[21] However, the Adjudicator stressed that Cover and Taylor were free to raise it in a subsequent, separate action.[22]
[20]As noted by the Adjudicator, Transcript page 21 line 15; page 32 line 37; page 46 line 19.
[21]Transcript page 12 line 16 (Curtis).
[22]Ibid page 45 lines 41 – 45.
Taylor’s application for leave to appeal asserts one ground only, namely that Cover, and Cover alone, is liable for the alleged debt, and that he (Taylor) was wrongly joined as a party. It is the notice of appeal that sets the bounds of the appeal, not subsequent written or oral argument.[23] In the light of the evidence accepted by the Adjudicator, that contention is doomed to failure. The evidence of indebtedness is overwhelming and none has been produced in rebuttal. There is no reason to suppose that, if Roarty had been fully fit and present in person (in the event, he was heard on audiolink), he could have done more than offer repetitive, unsubstantiated denials of liability.[24] The patience of this creditor rivals that of the Adjudicator, who endured submissions – including lengthy interruptions of his viva voce judgment – that were repetitive, irrelevant, and obfuscatory.
[23]Scagliotti v Boyd [1962 Qd R 481 at 494; McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 581.
[24]As rejected in Byrne v Kinematograph Renters’ Society Ltd [1958] All ER 579 and Rush v WA Amateur Football League Inc [2005] WASC 206.
There is no reasonably arguable ground of appeal, and certainly no point of general interest to the public. This application is singularly unmeritorious, and must therefore be dismissed.
ORDER
The application for leave to appeal is dismissed.
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