Vetty Velu Ragunathan v Avestra Capital Pty Ltd
[2011] QCATA 16
•9 February 2011
| CITATION: | Vetty Velu Ragunathan v Avestra Capital Pty Ltd [2011] QCATA 16 |
| PARTIES: | Vetty Velu Ragunathan (Applicant) |
| v | |
| Avestra Capital Pty Ltd ABN 4011 4266 698 (Respondent) |
| APPLICATION NUMBER: | APL236-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 9 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused |
| CATCHWORDS : | Minor Civil Dispute; where applicant failed to provide evidence in support of offsetting claim; where no basis established to disturb findings as to credit; where applicant sought to lead fresh evidence. Queensland Civil and Administrative Tribunal Act 2009, section 143(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 21 September 2010 the Tribunal made an order that the applicant pay to the respondent the sum of $10,497.09. The order was made consequent upon a hearing of a minor civil dispute commenced in the Tribunal on 6 May 2010 by Avestra Capital Pty Ltd (“Avestra”) for monies due and owing by the respondent, pursuant to a signed guarantee and indemnity whereby the respondent guaranteed to the debts of a company of which he was a director, Stockexinsider Pty Ltd (“Stockexinsider”).
The guarantee was annexed to an agreement entered into between Avestra and Stockexinsider for the supply of financial services and computer software by Avestra, for which Stockexinsider was to receive commission payments upon sale of the product. Mr Ragunathan, a Director of Stockexinsider, signed the guarantee in which he agreed to:-
(a) “Guarantee the performance by the company of all of the terms and conditions of the agreement
(b) Guarantee the punctual payment by the company of all amounts owing to the licensee under the agreement …”
Avestra’s claim related to the refund of monies paid by it to various clients Stockexinsider introduced to Avestra’s products.
Avestra’s application for the recovery of the debt pursuant to the guarantee was resisted by Mr Ragunathan and he filed a comprehensive response in the Tribunal on 8 July 2010. Mr Ragunathan contended that Avestra had not properly accounted for all monies owing to Stockexinsider for the sale of Avestra’s products. Further, by a letter of 17 December 2009, Mr Ragunathan contended that Avestra asserted that the relationship with Stockexinsider and Mr Ragunathan had come to an end and all debts could be considered finalised.
The application came on for hearing before a Tribunal Member on 21 September 2010. As a consequence of considering the evidence and hearing the parties, the order was made that the Mr Ragunathan pay $10,497.09 to the Avestra pursuant to the signed guarantee.
Mr Ragunathan has now filed an application for leave to appeal – appeal from that decision. As this is an appeal from a decision in a minor civil dispute, leave is necessary.[1] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act section 143(2).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
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?
Mr Ragunathan’s application for leave to appeal or appeal does not identify any specific error on the part of the Tribunal member. In part C the grounds are set out as follows:-
“The decision made by QCAT be reviewed, on the grounds of unprepared evidential and supportive documents not being received by QCAT at the time of the hearing dated 21 September 2010, which has directly disadvantaged the appellant
Attached to (form 39 (2) whether to award costs or not), on the grounds that the respondent (Avestra Pty Ltd) owes commission monies to the appellant (VETTY VELU RAGUNATHAN), as per ITEM for, 4.1 of the Representative Services Agreement, and in accordance with clause 7.3 signed between the parties on 20 April 2009.”
In respect of the first ground of appeal, Mr Ragunathan did file in the Tribunal, on 17 September 2010, further information by way of a letter setting out further evidence and submissions as to why Stockexinsider, and he as guarantor, did not owe the money to the applicant. He made reference to, amongst other things, the letter of 13 April 2010 in which Avestra states:-
2. “Your debt can now be considered finalised and we will no longer pay any commissions or any referrals to Stockexinsider Pty Ltd.
3. Outstanding debt is: $10,497.09”
In addition, to the documents produced late he made references to an email from Graham Rogers, a representative of Stockexinsider in which claims are made on behalf of that company for commissions due and owing from Avestra which should be set off against any amount payable by Stockexinsider.
The learned Adjudicator, the transcript reveals, took all these matters into account. In particular, he accepted the evidence of Mr Kennelly, the representative of Avestra, that when the final balance of $10,497.09 was calculated, all current and future offsets for commissions payable to Stockexinsider was taken into account. This evidence was accepted by the Tribunal member, as he was entitled to do, and did so in circumstances where no evidence was led by Mr Ragunathan, who was still a director of Stockexinsider, of any additional monies owing to it in addition to those offset by Avestra. The learned Member said this:-
“In his letter (Mr Ragunathan’s) he said, he said that he has no idea why Avestra has now come to QCAT for any action, and sets out various reasons why he doesn’t owe any money to Avestra. On balance, having heard the evidence and having heard the submissions of both parties, and indeed, the applicant in his submissions indicated that the refunds or the repayments following the refunds were due to various clients, they were hard cash, that is, cheque that had to be written on behalf of the applicant company.
They were due sometimes in situations where products were not properly explained or there were in fact misrepresentations. In any event I prefer and accept the evidence of the applicant to the evidence of the respondent, and accordingly for the various reasons I have outlined above and in particular because the applicant’s case appears to be clear and to the point with supporting documentation and together with sworn evidence from Mr Alistair Kennelly, which I have accepted in preference to the evidence of the respondent.”
A clearer statement of the basis for accepting the applicant’s claim could not be made. The learned member relied on the accounting exercise set out in the letter of demand prepared by Avestra’s solicitors.[6]
[6] Annexure A to the Application for a minor civil dispute.
Therefore, the production of late documents as asserted in ground 1 of the application was not to the disadvantage of Mr Ragunathan and clearly, the Tribunal member took that information into account.
The second ground simply seeks to introduce new evidence into the proceeding. This evidence was not before the Tribunal member. Mr Ragunathan has not established any basis upon which new evidence should now be received and relied upon. He has not satisfied this Tribunal that it was unable to be produced before the hearing at first instance. Even in this appeal he does not identify, with any precision, what he claims should be offset against the monies owed to Avestra.
Mr Ragunathan also relies on the letter of 17 September 2009, but once again the learned member dealt with this. The effect of this letter was that the relationship between Avestra and Stockexinsider was at an end and in the final accounting, Stockexinsider was indebted to Avestra for $10,497.09. A payment plan was offered to Stockexinsider and refused. There is nothing in this point.
As indicated above, for the application for leave to appeal to succeed, the applicant must identify some error or fact of law on the part of the learned member. No error is demonstrated and none is apparent. It is not my role, in considering this appeal to re-litigate the matter and decide where the truth lay as between the competing versions given by the parties[7]. That is the role of the learned Member. My sole duty is to determine whether there is an error in the primary decision.
[7] Fox v Percy (2003) HCA 22 at (32).
As I have found there is no error, leave to appeal must be refused.
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