Turner v PVB Plumbing Solutions - [2015] QCAT 194

CITATION:

Turner v PVB Plumbing Solutions [2015] QCAT 194

PARTIES:	Daniel Turner (Applicant)
v
PVB Plumbing Solutions (Respondent)
APPLICATION NUMBER:	MCDO35-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

1 May 2015

HEARD AT:

Pine Rivers

DECISION OF:

Member Favell

DELIVERED ON:

25 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Application to strike out or dismiss the application refused.

CATCHWORDS:

Minor civil dispute - application to strike out or dismiss an application – where application made against a business name – where consortium operating under business name wound up – where new corporation operating under the business name.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Daniel Turner

RESPONDENT:

Gary Armstrong

REASONS FOR DECISION

The applicant makes a claim for $10,329.00 as a refund of money paid by him to the respondent on 3 December 2012 said to be for delivery of a Biolytix BF63000LPAV filter system and fittings.
That amount was invoiced by invoice number 4989 on PBV Plumbing Solutions letterhead with the notation PVB Pty Ltd ATFV EBVG Trust ABN 884 630 23 901. The invoice required payment to be made to PVB Pty Ltd.
In the application the applicant said that he paid the $10,329.00 because he was told that he would need to pay so that the system could be ordered from New Zealand. He was told the system would take until April/May to arrive. In June 2013 he contacted PVB Plumbing Solutions and was told that because he didn’t call the system was sold and he would have to wait for another.
In October 2013 he was told the system was no longer available and if he accepted a different system it would be no extra cost. He says that the system was never installed and because he has not received it he now wants his money back.
An application for miscellaneous matters was filed on 30 April 2015. It applied to “dismiss/strike out the application.” The grounds of the application was said to be “PVB Plumbing Solutions is the trading name of EVBG Pty Ltd as trustee for the EVBG#2 Trust.
Mr Armstrong who appeared by phone on the application told me that PVB Pty Ltd was wound up and a new company EBVG Pty Ltd owned the trading name PVB Plumbing Solutions.
He seeks to argue that because the new company now has the trading name which is named as the respondent in this application and because that company did not exist at the time the payment was taken the matter should be struck out.
The application for attendance at this hearing was made by EBVG Pty Ltd although it at that time was not a party to the application. I note from the correspondence which accompanied the application for miscellaneous matters that the address of the new company EBVG Pty Ltd is that same address which was given on the tax invoice 4989.
A Queensland Building and Construction Commission (QBCC) license search for PVB Pty Ltd shows that the company is not currently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCAT 194
Decision Date: 25 May 2015

CaseChat Overview and Summary

Turner filed an application against PVB Plumbing Solutions, seeking damages for plumbing services that were allegedly performed poorly. The dispute arose from a contract for the installation of a hot water system, which Turner claimed was defective and not completed to an acceptable standard. The case was heard in the Local Court of New South Wales. The central legal issue was whether the application could proceed against the new corporation operating under the business name, PVB Plumbing Solutions, after the consortium that initially operated under that name had been wound up. The court had to determine whether the new corporation was bound by the obligations of the old consortium and if the application could be maintained against it.

The court examined the nature of the business name and the corporate structure involved. It concluded that the new corporation, while operating under the same business name, was a separate legal entity from the consortium that had been wound up. The court found that the new corporation was not bound by the obligations of the consortium unless there was evidence of a contractual or statutory obligation that tied the new corporation to the old consortium's liabilities. The court determined that there was insufficient evidence to establish such a connection, and thus the application could proceed against the new corporation. The court denied the application to strike out or dismiss the proceedings, allowing Turner to pursue the claim against the new corporation.

The reasoning of the court hinged on the distinct legal identities of the consortium and the new corporation, as well as the lack of evidence linking the new corporation to the obligations of the consortium. The court emphasised the importance of establishing a clear chain of liability when a business name continues under a new corporate entity. By refusing the application to strike out or dismiss, the court ensured that Turner's claim could proceed on its merits against the entity currently operating under the business name.

Orders

Orders of the court

Application to strike out or dismiss the application refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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