Walsh Accountants Pty Ltd v Tonge - [2023] QCAT 467

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: WALSH ACCOUNTANTS PTY LTD V TONGE [2023] QCAT 467

PARTIES:

WALSH ACCOUNTANTS PTY LTD

(applicant)

v

MARK TONGE

(respondent)

APPLICATION NO:

167/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

13 October 2023

HEARING DATE:

25 August 2023

HEARD AT:

Southport

DECISION OF:

Adjudicator Scott-Mackenzie

ORDERS:

1.      The application by the respondent to dismiss the proceeding on the ground the Tribunal is without jurisdiction to hear and decide the proceeding is dismissed.

2.      The application by the applicant filed 24 August 2023 for leave to be represented in the proceeding by Ms Matheou is granted.

3.      The application by the respondent filed 15 September 2023 for leave to be represented in the proceeding by a lawyer is refused.

4.      The applicant, by 4.00pm on 13 November 2023, file and serve on the respondent by email any additional material on which it intends to rely at the hearing of the proceeding.

5.      The respondent, by 4.00pm on 27 November 2023, file and serve on the applicant by email any additional material on which he intends to rely at the hearing of the proceeding.

6.      The parties may not rely on material at the hearing of the proceeding other than material already filed or filed in accordance with this order without the leave of the Tribunal.

7.      The parties have available at the hearing of the proceeding a hard copy of an indexed and paginated book of the documents on which they intend to rely at the hearing of the proceeding.

8.      The proceeding be fixed for hearing on the next available hearing date after 27 November 2003.

9.      This order be served on the parties by email.

CATCHWORDS:

JURISDICTION – where applicant’s claim for accountancy fees – where respondent disputes authority to carry out work and alleges failure to carry out work – whether nature of claim changed – whether claim for a debt or liquidated demand of money – whether Tribunal has jurisdiction to hear and decide the proceeding – where parties applied for leave to be represented – whether proceeding likely to involve complex questions of fact and law

Practice Direction 9 of 2010

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 11, s 43, schedule 3

Alexander v Ajax Insurance Co Ltd [1956] VicLaw Rp 5, [1956] VLR 436
Cameron Family Trust v Applikote Gold Coast Pty Ltd [2022] QCATA 36
Cello Court Pty Ltd v Body Corporate for Cello Court CTS 42339 [2021] QCATA 62
Financial Advisors Australia v Mooney & Anor [2016] QCATA 181
Hashfield v Gold Coast City Council [2020] QCATA 36
Hill v Berghofer [2011] QCATA 34
Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87
Odgers, Pleadings and Practice, (12th ed.), 1939
Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

Spannys Whitsunday Real Estate v Proserpine Youth Club Inc [2023] QCAT 171

APPEARANCES & REPRESENTATION:

This matter was heard and decided on the…

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: [2023] QCAT 467
Decision Date: 13 October 2023

CaseChat Overview and Summary

Walsh Accountants Pty Ltd initiated a proceeding against Tonge to recover unpaid accountancy fees. Tonge contests the authority of Walsh Accountants to carry out the work and claims that the work was not completed. The dispute was brought before the Tribunal to determine if the Tribunal had the jurisdiction to hear and decide the proceeding, whether the claim was for a debt or a liquidated demand of money, and whether the parties could be represented by legal counsel. The applicant sought leave to be represented by Ms Matheou, while the respondent applied to be represented by a lawyer. The Tribunal needed to decide if the proceeding involved complex questions of fact and law.

The court found that the nature of the claim did not change and it remained a debt claim. It was determined that the Tribunal had the jurisdiction to hear and decide the proceeding. The application by the respondent to dismiss the proceeding on the ground that the Tribunal was without jurisdiction was dismissed. The applicant's application for leave to be represented by Ms Matheou was granted, while the respondent's application for leave to be represented by a lawyer was refused. The parties were instructed to file and serve any additional material on which they intended to rely at the hearing, and it was specified that only material already filed or filed in accordance with the order could be relied upon without the leave of the Tribunal. A hard copy of an indexed and paginated book of the documents on which the parties intended to rely at the hearing was made available to them.

The proceeding was fixed for hearing on the next available date after 27 November 2023. The order was to be served on the parties by email. The Tribunal ensured that the proceeding would be managed efficiently, with a focus on the relevant material and representation of the parties. The outcome was that the proceeding would proceed with the applicant represented by Ms Matheou, and the respondent unrepresented, under the specified procedural requirements.

Orders

Orders of the court

1. The application by the respondent to dismiss the proceeding on the ground the Tribunal is without jurisdiction to hear and decide the proceeding is dismissed.

2. The application by the applicant filed 24 August 2023 for leave to be represented in the proceeding by Ms Matheou is granted.

3. The application by the respondent filed 15 September 2023 for leave to be represented in the proceeding by a lawyer is refused.

4. The applicant, by 4.00pm on 13 November 2023, file and serve on the respondent by email any additional material on which it intends to rely at the hearing of the proceeding.

5. The respondent, by 4.00pm on 27 November 2023, file and serve on the applicant by email any additional material on which he intends to rely at the hearing of the proceeding.

6. The parties may not rely on material at the hearing of the proceeding other than material already filed or filed in accordance with this order without the leave of the Tribunal.

7. The parties have available at the hearing of the proceeding a hard copy of an indexed and paginated book of the documents on which they intend to rely at the hearing of the proceeding.

8. The proceeding be fixed for hearing on the next available hearing date after 27 November 2003.

9. This order be served on the parties by email.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*WALSH ACCOUNTANTS PTY LTD V TONGE* [2023] QCAT 467
PARTIES:	WALSH ACCOUNTANTS PTY LTD
(applicant)
v
MARK TONGE
(respondent)
APPLICATION NO:	167/23
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	13 October 2023
HEARING DATE:	25 August 2023
HEARD AT:	Southport
DECISION OF:	Adjudicator Scott-Mackenzie
ORDERS:	1. The application by the respondent to dismiss the proceeding on the ground the Tribunal is without jurisdiction to hear and decide the proceeding is dismissed. 2. The application by the applicant filed 24 August 2023 for leave to be represented in the proceeding by Ms Matheou is granted. 3. The application by the respondent filed 15 September 2023 for leave to be represented in the proceeding by a lawyer is refused. 4. The applicant, by 4.00pm on 13 November 2023, file and serve on the respondent by email any additional material on which it intends to rely at the hearing of the proceeding. 5. The respondent, by 4.00pm on 27 November 2023, file and serve on the applicant by email any additional material on which he intends to rely at the hearing of the proceeding. 6. The parties may not rely on material at the hearing of the proceeding other than material already filed or filed in accordance with this order without the leave of the Tribunal. 7. The parties have available at the hearing of the proceeding a hard copy of an indexed and paginated book of the documents on which they intend to rely at the hearing of the proceeding. 8. The proceeding be fixed for hearing on the next available hearing date after 27 November 2003. 9. This order be served on the parties by email.
CATCHWORDS:	JURISDICTION – where applicant’s claim for accountancy fees – where respondent disputes authority to carry out work and alleges failure to carry out work – whether nature of claim changed – whether claim for a debt or liquidated demand of money – whether Tribunal has jurisdiction to hear and decide the proceeding – where parties applied for leave to be represented – whether proceeding likely to involve complex questions of fact and law Practice Direction 9 of 2010 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 11, s 43, schedule 3 Alexander v Ajax Insurance Co Ltd [1956] VicLaw Rp 5, [1956] VLR 436 Cameron Family Trust v Applikote Gold Coast Pty Ltd [2022] QCATA 36 Cello Court Pty Ltd v Body Corporate for Cello Court CTS 42339 [2021] QCATA 62 Financial Advisors Australia v Mooney & Anor [2016] QCATA 181 Hashfield v Gold Coast City Council [2020] QCATA 36 Hill v Berghofer [2011] QCATA 34 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 Odgers, Pleadings and Practice, (12th ed.), 1939 Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Spannys Whitsunday Real Estate v Proserpine Youth Club Inc [2023] QCAT 171
APPEARANCES & REPRESENTATION:	This matter was heard and decided on the…