SUPREME COURT OF QUEENSLAND
CITATION:
Thomson v Tremco Pty Limited [2019] QCA 18
PARTIES:
CAROLYN MARY THOMSON
(appellant)
v
TREMCO PTY LIMITED
ACN 000 024 064
(respondent)FILE NO/S:
Appeal No 7342 of 2018
DC No 3868 of 2017DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane – [2018] QDC 101; [2018] QDC 109 (Porter QC DCJ)
DELIVERED ON:
12 February 2019
DELIVERED AT:
Brisbane
HEARING DATE:
23 October 2018
JUDGES:
Sofronoff P and Gotterson and Morrison JJA
ORDERS:
1. Appeal dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where Mr and Mrs Thomson set up a company, Kadoe Pty Ltd, to carry on a waterproofing business – where Kadoe’s main supplier of waterproofing products was Tremco Pty Ltd – where Kadoe ceased paying Tremco’s invoices – where Tremco sued Kadoe in the District Court and, after a trial, obtained a judgment in its favour – where Kadoe was wound up on Tremco’s application – where Tremco sought to recover compensation against Mrs Thomson, on the basis that she was a de facto director of Kadoe – where judgment was given in favour of Tremco against Mrs Thomson – where the appellant contends that the Court should conclude there was apprehended bias in relation to the learned trial judge’s handling of the trial – where the trial judge had five months prior to being appointed, made public statements containing negative views of litigants in person – whether the public statements made by the trial judge amounted to apprehended bias
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the appellant advanced that the claim for loss and damage was for the judgment debt under the judgment of 27 February 2015, and not the loss and damage sustained by Tremco – where there is the contention that there was a lack of evidence proving each debt and it was therefore not possible to reach a conclusion that the appellant’s company was insolvent – where it is contended that the trial was conducted on the basis that the debts were incurred between March 2010 and December 2010, but the learned trial judge’s decision was based on debts being incurred between March 2010 and January 2011 – where the managing director had not provided copies of the invoices, proof of the deliveries or proof of listed invoices – whether s 588G of the Corporations Act was satisfied – whether the debts were incurred when the appellant claims – whether the non-supply of invoices is an issue
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – OTHER CASES – where the appellant contends that the decision of…
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- AGLC
- Thomson v Tremco Pty Limited [2019] QCA 18
- Case
- [2019] QCA 18
- Decision Date
CaseChat Overview and Summary
The appeal was brought by Mrs Thomson against the decisions of the trial judge. The case involved a dispute between Mrs Thomson, who was associated with Kadoe Pty Ltd, a waterproofing business, and Tremco Pty Ltd, the main supplier of waterproofing products. The central issue was whether Mrs Thomson, who was claimed to be a de facto director of Kadoe, should be held responsible for the company's debts. The dispute arose after Kadoe stopped paying Tremco’s invoices, leading Tremco to sue Kadoe. After a successful judgment in Tremco’s favour, Kadoe was wound up on Tremco’s application. Tremco then sought to recover compensation from Mrs Thomson. Mrs Thomson argued that the trial judge's handling of the case was biased due to his prior negative public statements about litigants in person. She also contended that the trial judge's decision was based on incorrect facts and that the evidence did not support the claim that Kadoe was insolvent. The appeal further argued that the trial judge did not adequately consider the causal link between the debts and the insolvency, and that the trial judge's decision was not based on the correct cases.
The court found that Mrs Thomson's appeal lacked merit. It rejected the claim of apprehended bias, noting that the trial judge's prior statements did not demonstrate any bias against self-represented litigants in the specific context of the case. The court also dismissed the argument that the evidence did not support the claim of insolvency, stating that the trial judge's findings were supported by the evidence. Regarding causation, the court held that it was not necessary for the trial judge to explicitly consider the causal link, as the evidence and arguments presented were sufficient. The court further found that the trial judge's decision was not influenced by the incorrect case law citations, as the correct principles were applied. Lastly, the court found no merit in the argument that the non-inclusion of certain witnesses led to unfairness, as the witnesses' testimonies would not have affected the outcome of the case.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. This decision upheld the trial judge's findings and affirmed the judgment in favour of Tremco against Mrs Thomson.
The court found that Mrs Thomson's appeal lacked merit. It rejected the claim of apprehended bias, noting that the trial judge's prior statements did not demonstrate any bias against self-represented litigants in the specific context of the case. The court also dismissed the argument that the evidence did not support the claim of insolvency, stating that the trial judge's findings were supported by the evidence. Regarding causation, the court held that it was not necessary for the trial judge to explicitly consider the causal link, as the evidence and arguments presented were sufficient. The court further found that the trial judge's decision was not influenced by the incorrect case law citations, as the correct principles were applied. Lastly, the court found no merit in the argument that the non-inclusion of certain witnesses led to unfairness, as the witnesses' testimonies would not have affected the outcome of the case.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. This decision upheld the trial judge's findings and affirmed the judgment in favour of Tremco against Mrs Thomson.
Orders
Orders of the court
1. Appeal dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
Background
Background to the litigation
Mrs Thomson appeals against both decisions.Some Background The learned trial judge set out the details of the factual background, including the way in which Kadoe was set up, how it traded, its dealings with Tremco and the difficulties which led to its failure. What follows is largely taken from the matters found by his Honour. Mr and Mrs Thomson were each involved in conducting businesses prior to Kadoe. Mr Thomson was a waterproofer by trade, and Mrs Thomson conducted a knitwear business, and then they jointly conducted a bed and breakfast business in Victoria. In about 2003 they moved to Queensland where, eventually Kadoe was set up. Mrs Thomson said in an affidavit filed in the District Court that she was the General Manager of Kadoe between March 2009 and November 2014. She said Kadoe was incorporated in March 2009 for the purpose of being a corporate trustee of the For Three Trust (the Trust). Advice was given to Mrs Thomson by accountants in respect of the business structure, and particularly the establishment of the Trust. Mrs Thomson said she had advice from the accountants that Kadoe should not trade in any other capacity than as the Trustee of the Trust. As a result Mrs Thomson engaged them to set up Kadoe, establish the Trust, and apply for an ABN and Tax File Number for Kadoe. When Kadoe was incorporated in March 2009 copies of the Trust Deed creating the For Three Trust were provided for execution, and the business name Kadoe Commercial Coatings was registered. Mr Thomson was appointed as a sole director of Kadoe. It had 100 shares, owned equally between Mr and Mrs Thomson. As matters transpired, the settlement sum for the Trust was not paid and therefore there was an issue at the trial as to whether the Trust had been validly created, and if not, whether that mattered to Tremco’s claim. Kadoe lodged a credit application with Tremco in September 2009. It gave its trading name as Kadoe Commercial Coatings and Mrs Thomson’s email as the contact email. The application revealed that Kadoe was acting as the trustee for the For Three Trust, and listed Mr Thomson as the sole director. Kadoe began to trade in the last few weeks of the 2009 financial year, with Tremco as the key supplier of the products it required to carry on its business. Kadoe traded from the Thomson’s family home. Most days Mr Thomson was usually onsite somewhere, carrying on the waterproofing work in which the company engaged. From about February 2010 Tremco’s dealings with Kadoe were dealt with by a Ms Willson. She gave evidence at the trial which was accepted by the learned trial judge. Ms Willson said she dealt exclusively with Mrs Thomson in relation to Kadoe’s affairs. She said Mrs Thomson had a good knowledge of Tremco’s business and margins, and negotiated specific pricing which differed from the standard price list. Mrs Thomson managed the Kadoe operations on a day to day basis, including ordering products, ascertaining work in the marketplace, organising staff, dealing with other contractors and developers, deliveries, accounts, contract tenders, market research and marketing. So far as Ms Willson knew, Mr Thomson performed no role for Kadoe other than carrying out the labour.
Evidence
Evidence Before The Court
This ground of appeal should be rejected.Expert evidence and UCPR rule 429G This contention is that expert evidence on the part of Tremco was not obtained in accordance with r 429G of the UCPR.[79] Mrs Thomson contends that the request for expert evidence was made while the proceedings were still in the Supreme Court, and before its transfer to the District Court. For that reason r 429G of the UCPR applied, contrary to the finding by the learned trial judge in his Costs Reasons at [21].[79]Outline on Appeal paras 21-22. UCPR r 429G is contained in Division 3 of Part 5, Chapter 11 of the UCPR. That division applies only to proceedings in the Supreme Court: r 429E. Rule 429G deals with the appointment of experts and provides:“(1)If, after a proceeding has started, 2 or more parties agree that expert evidence may help in resolving a substantial issue in the proceeding, subject to rule 429H, those parties may in writing jointly appoint an expert to prepare a report on the issue.(2)If parties to a proceeding are not able to agree on the appointment of an expert, subject to rules 429I and 429K, any party who considers that expert evidence may help in resolving a substantial issue in the proceeding may apply to the court for the appointment of an expert to prepare a report on the issue.(3)Subject to rules 429J and 429K, the court may, on its own initiative and at any stage of a proceeding, if it considers that expert evidence may help in resolving a substantial issue in the proceeding, appoint an expert to prepare a report on the issue.” Mrs Thomson’s contention is wholly misconceived. The relevant expert referred to is Mr Hudson, a member of SV Partners, and Tremco’s expert witness.[80] There was no occasion upon which Tremco and Mrs Thomson discussed the appointment of Mr Hudson or any other expert to prepare a solvency report.[81][80]Appellant’s submission on costs para 6, AB 390.[81]Appellant’s outline on costs, para 12(b), AB 392. The parties never jointly appointed an expert, so that r 429G(1) was inapplicable. There was no occasion on which they were not able to agree on the appointment of an expert, and therefore r 429G(2) was inapplicable. There was no occasion where the court, on its own initiative, considered the appointment of an expert. The contention proceeds upon the mistaken basis that the only way a party can call an expert is by utilising r 429G, or Division 3 more generally. That is not the case as parties can select their own experts provided that the requirements of Division 2 of Part 5 are complied with. There is nothing in this point.Attack on the expert report by Mr Hudson Mrs Thomson raised a contention concerning the expert report put into evidence by Tremco. It was completed by Mr Hudson, who was an employee of SV Partners. The criticism advanced at trial, and again on appeal[82] is that the report was not based on a complete set of financial statements as Mr Hudson only used one MYOB database and not the two that were in the possession of Kadoe’s liquidators.[82]Appellant’s outline at para 23.
Decision
Reasons for decision
Mrs Thomson gave evidence that Kadoe ceased trading on 30 June 2013. Tremco instituted proceedings to recover its debt. It was successful in those proceedings and received a judgment of $146,410 plus interest of $44,914.60, and Kadoe was ordered to pay costs on the standard basis.[6] The Tremco Judgment was not appealed.[6]Tremco Pty Ltd v Kadoe Pty Ltd trading as Kadoe Commercial Coatings [2015] QDC 40 (Tremco Judgment). Kadoe failed to comply with a statutory demand issued on behalf of Tremco and it was wound up in insolvency on 29 April 2015. Mr Terrence Rose and Ms Ann Meagher were appointed as liquidators. Mr Thomson was made a bankrupt in June 2015. Tremco’s proceedings against Mrs Thomson were commenced on 28 April 2016.The appeal Mrs Thomson raised numerous points in support of the various grounds of appeal. In some respects her outlines were convoluted and repetitious, at least in so far as the apprehended bias grounds were concerned. I intend to deal with the points as they appeared at the end of oral address.Apprehended bias Before this Court Mrs Thomson advanced a contention that it should conclude there was apprehended bias in relation to the learned trial judge’s handling of the trial. The point centred around two issues; that Mrs Thomson was self-represented in the trial proceedings, and the learned trial judge had, five months prior to being appointed, made “public statements containing his clear and unfavourable views of litigants in person”.[7][7]Notice of Appeal para 2(a). The point as developed in Mrs Thomson’s outline, and orally, was that a fair-minded lay observer would have a reasonable apprehension of bias by the learned trial judge because:[8](a)on 25 March 2017, whilst still a member of the Bar, his Honour publicly stated what his opinion of litigants in person was based on his own experience, as well as the experiences of Douglas J and a psychiatrist, Dr Gates; these were expressed in a paper entitled “Advocacy and the Litigant in Person”;(b)those public statements were clear and unfavourable, and totally negative towards litigants in person, “to the total exclusion of any positive profile of a litigant in person”;(c)the statements were in terms that: litigants in person were not in touch with reality, and remain insane for the bulk of their life because they hold on to grievances for losses that are not real; and compared them to Don Quixote, fighting their opponents on fantasised images or suffering from pathological symptoms like schizophrenia, where 150 years of medical research into querulous paranoia has not provided any true pathological reason for that querulousness.[8]Outline on Appeal para 19. The contention was that the paper was presented to the Bar Association of Queensland 2017 conference, “including barristers that might be the opponents of litigants in person. The Bar Association then subsequently made the full paper available for anyone to access”. The paper in question[9] focused on the issue of advocacy when dealing with a litigant in person. In the introductory section the paper identified that cases involving a litigant in person[10] presented particular challenges for a judge, calling for more focussed advocacy on the barrister’s part. For example, it was said:[11]“… dealing with an LIP throws up a number of novel issues which the advocate must take into account in conducting his or her case, both in an ethical manner and to the best advantage of his or her client. The purpose of this paper is to identify some of those issues.”[9]Appeal Book (AB) 1944.[10]Referred to in the paper as a LIP.[11]Para 5.
Ratio Decidendi
Legal Principle Established
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