Wizzard! Rehearsal Rooms Pty Ltd v Apel
[2017] QCATA 137
•27 November 2017
CITATION: | Wizzard! Rehearsal Rooms Pty Ltd v Apel & Ors [2017] QCATA 137 |
PARTIES: | Wizzard! Rehearsal Rooms Pty Ltd |
| v | |
| Neal Anson Sinclair Apel Steven Chiapello Andrew Hine (Third Respondent) | |
APPLICATION NUMBER: | APL165-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
DELIVERED ON: | 27 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Byron Butler is removed as a respondent to the appeal. 2. Leave to appeal is refused. The appeal therefore fails. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal |
APPEARANCES: |
This appeal was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 4 August 2015, Wizzard! Rehearsal Rooms Pty Ltd brought a claim against four named respondents. One of them was not served with the claim so that dropped away. There were delays in serving the other respondents, requiring extensions of time, but evenutally these respondents were served: Neal Apel, Stephen Chiappello, and Andrew Hine.
They were said to owe amounts for rent for rehearsal rooms at Wizzard’s premises, dating back as far as 2007 for Mr Apel, and dating back to 2008 for Mr Chiapello and Mr Hine.
The claim was amended twice. After the first amendment the amounts claimed ranged in amount from $340.59 (in the case of Mr Hine) to $1,713.78 (in the case of Mr Apel) plus interest. The second amendment was made following the tribunal’s order because some of the money which was claimed appeared to be statute barred. After the second amendment the amount claimed ranged in amount from $339.26 (in the case of Mr Hine) to $1,074.98 (in the case of Mr Apel) plus interest.
In the claim, the calculation of the amount owing from each respondent was done by dividing the time over which the rehearsal rooms were used by the respondents into periods. For each period it was said that there was an agreed fee to use the room for each day within the period, even if the room was not actually used. That resulted in an amount said to be payable by each respondent. That amount was compared with the amount which it was said had actually been paid by each respondent, resulting in an amount said to be owing.
So the claim depended on each of the respondents having made a number of agreements with Wizzard to use a particular rehearsal room over a particular period of time and to pay for the room over that whole period. For example, it was said that Mr Chiapello agreed to use room 5 from
26 March 2008 to 30 June 2008. A second agreement was that he agreed to use room 5 from 1 July 2008 to 8 September 2009. A third agreement was that he agreed to use room 5 from 9 September 2009 to
15 December 2009. And a fourth agreement was that he agreed to use room 6 from 16 December 2009 to 28 January 2010. The claims with respect to the other respondents were similar.In response to the claim, each respondent said that the period of time of the agreement stated in the claim was incorrect, and the amount stated in the claim to have been paid was incorrect. It was said that in fact, nothing was due. Mr Apel also raised the defence that the claim appeared to be statute barred for the earlier period of the alleged debt.
The matter was heard by an adjudicator on 15 March 2017 and on
26 April 2017. Wizzard was represented in these hearings by its director David Barker. The adjudicator dismissed the claim. Her reasons were:
a)The agreement between Wizzard and the respondents was that the respondents would pay for the use of the rehearsal rooms if they used the rooms, and would not pay when they did not use the rooms.[1] There is no other agreement as alleged by Wizzard.[2]
b)The amounts said to be owing were calculated some time after the respondents had used the rooms for the last time.[3] The lists of transactions relied on had been shown to be inaccurate by simple evidence so their reliability was questionable.[4]
c)The respondents paid in cash and other means and sometimes to another person left in charge and these payments were not necessarily recorded.[5]
d)Because of the lack of evidence supporting the claim, and it being Wizzard’s burden to prove it, it should be dismissed.[6]
[1]Transcript 26 April 2017 page 1-8 line 28.
[2]As above, page 1-8 line 41.
[3]Transcript 26 April 2017 page 1-8 line 39.
[4]As above, page 1-9 line 9.
[5]As above, page 1-8 line 44 and page 1-9 line 10.
[6]As above, page 1-9 line 29.
The first finding meant that the approach by Wizzard in its calculations was incorrect.
The grounds of appeal
The grounds of appeal are:
a)Procedural unfairness arising from the shortness of the time given to amend the application and serve it.
b)The Adjudicator made incorrect assumptions of fact without any evidence for those assumptions.
c)Bias, the Adjudicator already having decided to dismiss the claim, “partially based on her involvement in a similar matter last year”.
Ground of appeal a
This ground of appeal is “procedural unfairness arising from the shortness of the time given to amend the application and serve it”. This arises from the fact that the application was disposed of in the two hearings, the first on 15 March 2017 and the second 6 weeks later on 26 April 2017. The issue raised here may well have had an impact on the outcome of the application, at least with respect to Mr Chiapello, because the adjudicator refused to take into account some of the material filed by Wizzard, which had not been served on Mr Chiapello at all by the second hearing as the tribunal had required.[7]
[7]This was two emails purportedly sent by Mr Chiapello to Wizzard on 26 March 2010 and 21 October 2010, in which he appeared to acknowledge that he owed some money to Wizzard at that time.
What happened was that at the hearing on 15 March 2017, Mr Barker produced an affidavit exhibiting a list of transactions extracted from the company’s bank statements, a list of money received by the company over the periods concerned, a list of rental fees charged to those using the rooms and a list of adjustments made for interest, EFTPOS fees and early payment bonuses. This evidence was voluminous and detailed, but had not been given to the respondents.[8] Because of that, the hearing had to be adjourned to enable Wizzard to copy the documents and provide them to the respondents. Also, the adjudicator required the claim to be re-amended to exclude the parts of the claim which appeared to be statute barred. There was a discussion at the end of the hearing about how long Mr Barker would need to do that and he said he did not need as long as 30 days, but he needed only 14 days.[9]
[8]Transcript 15 March 2017 page 1-21.
[9]As above page 1-29 line 7.
The adjudicator made it clear to Mr Barker both during the hearing and at the end of the hearing when describing the order which was being made, that Wizzard could only rely on the documents which had been produced if they were given to the respondents and if this were not done and there was no evidence, the claim would be dismissed.[10]
[10]As above page 1-22 line 22, page 1-24 line 38, page 1-26 line 13, page 1-30 line 24.
The order made on that day directed both parties to file and serve all documents on which they intended to rely 7 days before the adjourned hearing and directed Wizzard to file and serve a further amended application within 14 days “to reflect only claims for monies owing after 4 August 2009”.
It can be seen from the file that the tribunal sent out notices of the adjourned hearing on 24 March 2017 by post. In the case of Wizzard, this was a local delivery since its address is in Toowong.
As it turned out, Wizzard provided Mr Apel with the documents on
24 April 2017, just two days before the hearing of 26 April 2017, but failed to provide Mr Chiapello with them at all. It appears that Mr Barker dropped them off at the wrong address despite the correct address appearing in
Mr Chiapello’s response to the claim. Wizzard was therefore in breach of the tribunal’s order.
In its submissions on appeal,[11] Wizzard explains this ground of appeal as being that it was not procedurally fair to set the 26 April 2017 date before Wizzard had a fair chance to comply with the directions given on 15 March 2017. It is said that the shortness of time between 29 March when the amended application was ready, and the hearing date of 26 April 2017, meant that time to serve the amended application on the respondents was too short, particularly bearing in mind that Easter and Anzac Day fell in between. Mr Barker says that the time difficulties were compounded by the fact that he was interstate during Easter and his return to Brisbane was delayed because of financial constraints. Funds only became available for transport back to Brisbane on 22 April 2017.
[11]Filed on 10 July 2017.
With respect to the amended claim, this ground of appeal has no substance bearing in mind that at the hearing Mr Barker asked only for 14 days to amend the claim and file it and serve it, which is what the order said.
With respect to the service of the affidavit and its exhibits and any further evidence that Wizzard wished to put before the tribunal, the period of 6 weeks less 7 days to achieve what was ordered was ample, as was the notice of the adjourned hearing. This ground of appeal also has no substance.
In its submissions on appeal, Wizzard also says under this ground of appeal that the Adjudicator wrongly said that Wizzard’s supporting evidence had not been filed in the tribunal, when in fact this had happened on
24 April 2017. It does not appear however, that this is alleged to have been an error of fact or law which affected the outcome, so this takes the appeal no further.
Ground of appeal b
As for b) that is, that the Adjudicator made incorrect assumptions of fact without any evidence for those assumptions, this is further explained by Wizzard in its submissions on appeal. It is said that:
a)The Adjudicator was wrong to find that there was no document clearly setting out the terms of the agreement at the time the recording studio was used.
b)The Adjudicator was wrong to find that Wizzard’s accounting systems were loose and questionable, with the result that cash payments were not always recorded.
c)The Adjudicator was wrong to find that a large part of the claim was statute barred.
As for a), what the adjudicator actually said was that “there is no clear agreement or documentation which sets out the terms of the agreement that Mr Barker says were in existence at the time the recording studio was used”.
When Mr Barker gave evidence about the agreement at the first hearing, he confirmed that the agreement was an oral one,[12] and this is confirmed in the submissions on appeal. So it is difficult to see in what way Wizzard says the adjudicator’s statement is incorrect. The submissions on appeal refer also to the statement of claim (lodged with the application), but nothing in that document could be taken as evidence of the agreement. The submissions on appeal refer to statements of account sent to each respondent three times a year, but these were not in evidence before the adjudicator; the only such statements of account in evidence post-dated the last date of the alleged hiring. The submissions on appeal say that the fact that the contracts were for period terms was never disputed by the respondents, but the responses did suggest this was in dispute, and the respondents did seem to dispute this in the hearing.[13] There is no substance in this ground of appeal.
[12]Transcript 15 March 2017 page 1-3 line 27.
[13]Transcript 15 March 2017 page 1-4 line 18 where Mr Apel said there was no contract, and transcript 26 April 2017 page 1-8 line 24 where there was a discussion about whether “storage” was charged on a day when a band did not use the room.
As for b), the adjudicator found that the lists of information had been put together several years after the event, had been found to be incorrect by simple evidence and the reliability of the records was very questionable.[14] No doubt this was because Mr Barker told the adjudicator that some of the information had been extracted from Wizzard’s running account “only last year”.[15] It also appeared that the daily chargeable rate would vary depending on how many bands used each room during the day and that information was not in the exhibits to the affidavit.[16] Mr Barker also said that he would receive cash payments and would only issue receipts if requested, but that no one had asked for a receipt since 2006.[17] At the hearing, the respondents said that they would make payments in cash when Mr Barker was not there and these may not have been properly recorded.
[14]Transcript 26 April 2017 page 1-8 line 30 and 39, page 1-9 line 8.
[15]Transcript 15 March 2017 page 1-5.
[16]As above page 1-6.
[17]As above page 1-7.
In those circumstances, the adjudicator’s findings about the quality of Wizzard’s records were probably inevitable.
In its submissions on appeal however, Wizzard describes its accounting process in detail seemingly in an attempt to show that errors were minimised. Such additional evidence is not admissible without the Appeal Tribunal’s permission, which has not been given. There is no substance in this ground of appeal.
As for c) Mr Barker refers to section 35(3) of the Limitation of Actions Act 1974 (Qld), which is capable of enlarging the limitation period upon a written and signed acknowledgement or a payment in respect of a claim. Mr Barker points out that each respondent made a payment less than six years before the claim was filed on 4 August 2015. Mr Barker contends that “the contract was divisible but continuous” and therefore none of the amounts claimed was statute barred.
The difficulty with this argument is that the adjudicator expressly found that each fee was due upon attendance and there was no agreement to use the rooms over a term as alleged by Wizzard. In those circumstances, any unpaid fee which remained unpaid 6 years prior to the commencement of the claim would indeed be statute barred.
In any case, the outcome of the claim was not affected by the adjudicator’s decision about whether any of it was statute barred. The application failed for lack of evidence to support the claim on liability. If there was an error in the adjudicator’s approach to the limitation period this could only affect quantum. This ground of appeal does not take the appeal any further.
Ground of appeal c
It is said that the adjudicator was biased against Wizzard because of her involvement in a similar matter the previous year. It is true that during the hearings that the adjudicator referred to a similar case she had heard before.[18]
[18]Transcript 15 March 2017 page 1-15 line 13, page 1-18 line 19 and page 1-28 line 26.
It would appear from what the adjudicator said that she had dealt on a previous occasion with a similar claim by Wizzard. With the large number of claims that adjudicators deal with in the tribunal it can easily happen that an adjudicator will hear a claim by the same applicant as before. There is nothing said by Wizzard in its appeal, nor in the transcript, which suggests that the adjudicator confused the evidence or failed to approach this case with an open mind. This ground of appeal is without substance.
Other issues arising in the appeal documents
There are some other points made by Wizzard in the submissions on appeal.
Wizzard applies in the submissions on appeal for permission to adduce further evidence, that is the passport of the alleged agent who may be a person to whom one or more of the respondents said they paid the room fee in cash from time to time. No doubt Wizzard have in mind here the Appeal Tribunal’s directions made on 13 June 2017 that “neither party will be allowed to rely upon any evidence which was not before the original decision maker without leave of the appeal tribunal”. There is nothing to show that this evidence was not available for the hearing however, so such leave would not be given. In any case, the evidence only goes to quantum and the adjudicator dismissed the application for lack of evidence in support on liability. In the circumstances, this evidence cannot be admitted on appeal.
In the submissions on appeal Wizzard seeks to change the amount that it is claiming against Mr Apel, seemingly in the light of some evidence submitted by Mr Apel showing that he was not present at times claimed. Since Wizzard’s claim against Mr Apel had been dismissed, this is only relevant should the Appeal Tribunal decide to reconsider the application by rehearing or to remit it back to the tribunal.
Wizzard attaches a transcript of the decision made by the Adjudicator. Mr Apel has submitted in his submissions in response that he does not have the transcript and so the appeal is procedurally unfair. In fact, the Appeal Tribunal has obtained transcripts of both hearings for its own use in resolving this appeal as can be seen from these reasons. Unfortunately, the Appeal Tribunal is unable to provide these to the parties.
Conclusion
Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. As can be seen from the above reasons, this is not the case here. Leave to appeal is refused and the appeal therefore fails.
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