Wong v Ong - [2015] QCATA 51

CITATION:

Wong v Ong [2015] QCATA 51

PARTIES:	Kong Wong (Applicant/Appellant)
v
Evelyn Loan Ong (Respondent)

APPLICATION NUMBER:

APL554-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

21 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where late fee from ASIC in lodging share transfer – where applicant was director of company affected – where no evidence late fee paid – where tribunal dismissed claim because of lack of evidence – whether tribunal had jurisdiction to hear claim – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 12(4), 29, Schedule 3

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter 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

Kong Wong and Khanh Long Nguyen were shareholders of AC Designs Pty Ltd. In November 2012, Mr Nguyen wanted to quit the company. He engaged Evelyn Loan Ong to look after his interests.
Ms Ong prepared a share sale agreement. She asked Mr Wong for details of the corporate key so that she could register the share transfer. Mr Wong gave her the wrong key.
In April 2014, Ms Ong sent AC Designs an ASIC invoice for the registration of the share transfer. The invoice included a late fee of $598. Mr Wong filed an application for minor debt claiming the late fee from Ms Ong. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed his claim.
Mr Wong wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The tribunal dismissed Mr Wong’s claim because it found there was insufficient evidence to support the claim. Mr Wong argues that the tribunal decision was wrong. He also takes issue with the fact that Ms Ong added a new argument to her response the night before the hearing.

Was the tribunal decision wrong?

I agree with the tribunal’s decision to dismiss this claim, although my reasons for doing so are slightly different.
The ASIC invoice was directed to the company, AC Designs. The company was the proper claimant, not Mr Wong. Mr Wong acknowledged that AC Designs was the proper applicant[3] but, for reasons unknown, continued the claim in his own name. It is also not clear why the tribunal did not amend the name of the applicant.
[3]Application for leave to be…

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] QCATA 51
Decision Date: 21 April 2015

CaseChat Overview and Summary

Wong sought leave to appeal a decision of the Civil and Administrative Tribunal (NCAT) which dismissed his claim for a late fee charged by the Australian Securities and Investments Commission (ASIC) in relation to a share transfer. The NCAT held that Wong had failed to provide evidence that he had paid the fee. The applicant argued that the NCAT had jurisdiction to hear the matter and that there were grounds for leave to appeal. The respondent argued that the appeal should be dismissed as the applicant had failed to demonstrate a sufficient probability of success on appeal.

The court had to decide whether the NCAT had jurisdiction to hear Wong's claim, and if there were grounds for leave to appeal. The court considered the nature of the dispute, the applicable statutory framework, and the evidence presented. The court noted that the NCAT has limited jurisdiction in minor civil disputes, and that the dispute in this case was minor in nature. The court also considered whether there were any arguable grounds for leave to appeal, including whether the NCAT had erred in its interpretation of the evidence or in its application of the law.

The court found that the NCAT had jurisdiction to hear Wong's claim, as the dispute fell within the scope of the Minor Civil Dispute Resolution Act. However, the court found that there were no grounds for leave to appeal. The court held that the NCAT had correctly found that Wong had failed to provide evidence that he had paid the late fee, and that there was no basis to conclude that the NCAT had erred in its interpretation of the evidence or in its application of the law. The court noted that the appeal was unlikely to succeed and that there was no sufficient probability of success on appeal.

The court refused leave to appeal.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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