Zahel Pty Ltd atf Re & BF Wilson Family Trust t/as Deluxe Chauffered Cars v David Farrell t/as Shamrock Limousines and Transfers
[2022] QCATA 113
•25 July 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Zahel Pty Ltd atf RE & BF Wilson Family Trust t/as Deluxe Chauffered Cars v David Farrell t/as Shamrock Limousines and Transfers [2022] QCATA 113
PARTIES:
ZAHEL PTY LTD ATF RE & BF WILSON FAMILY TRUST T/AS DELUXE CHAUFFERED CARS (appellant)
v
DAVID FARRELL T/AS SHAMROCK LIMOUSINES AND TRANSFERS (respondent)
APPLICATION NO/S:
APL329-21
ORIGINATING APPLICATION NO/S:
MCDO1248-17
MATTER TYPE:
Appeals
DELIVERED ON:
25 July 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
Leave to appeal refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where no error in the tribunal’s decision was identified – where appellant claimed it was an only agent for a disclosed principal – where appellant was not found to be an agent – where a party was interstate but the contract was formed in and the work done in Queensland – where the a party was entitled to be paid in Queensland
Queensland Civil and Administrative Tribunal Act 2009, s 142(3), s 32
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Barbara Wilson is the effective controller of Zahel Pty Ltd, atf RE & BF Wilson Family Trust t/as Deluxe Chauffeured Cars. Her daughter is Heather Wilson. Heather, trading as Deluxe Chauffeured Cars Queensland Pty Ltd used to subcontract driving jobs to David Farrell, trading as Shamrock Limousines and Transfers. Heather was diagnosed with multiple sclerosis, and she moved to Western Australia to live with, and be cared for by, her mother Barbara Wilson. Deluxe Chauffeured Cars Queensland Pty Ltd was deregistered on 19 December 2017.
Heather, Barbara and Mr Farrell had a meeting on 13 March 2017. They agreed that Mr Farrell would keep driving for “Deluxe”. Barbara said she offered to process invoices for Heather because she was unwell. She said she made it very clear that she was not assuming any liability for Heather’s debt and was simply assisting with the bookkeeping.
Mr Farrell has a different recollection of that meeting. He says Barbara was helping Heather wind up her business. From that point on, he thought that Barbara, trading as Deluxe Chauffeured Cars, was making the payments.
Mr Farrell did drive for, and invoice, Deluxe Chauffeured Cars. He wasn’t paid so he brought proceedings against Deluxe Chauffeured Cars. As Zahel is the entity behind that trading name, the tribunal ordered Zahel pay Mr Farrell $11,100.85.
Zahel 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]Queensland Civil and Administrative Tribunal Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Zahel submits there are two grounds of appeal. Firstly, it says that the tribunal erred in fact and law by finding that there was an agreement that it would pay Mr Farrell for driving jobs. Secondly, it submits that the tribunal erred in fact and law by failing to find that Zahel acted as agent for a disclosed principal, Deluxe Chauffeured Cars Queensland Pty Ltd.
Mr Farrell filed a number of documents in support of his submission that Barbara, as Zahel, was the appropriate respondent in the proceedings. He submitted a series of emails between himself and Barbara which confirmed the arrangement. He attached an email from Barbara where she asked him to send his invoices to [email protected]. He submitted copies of invoices, all addressed to Deluxe Chauffeured Cars.
Heather and Barbara filed responses to Mr Farrell’s claim. They both said, simply, that neither of them was the proprietor of Deluxe Chauffeured Cars.
Barbara appeared at the hearing. She had two arguments. The first was that Mr Farrell knew he was trading with Heather. The second was that Zahel could not trade in Queensland as it was only licensed in Western Australia. Barbara said that Mr Farrell’s emails did not reflect the terms of their discussions.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 [561]; Fox v Percy (2003) 214 CLR 118 [125]-[126].
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[5]
[4]Chambers v Jobling (1986) 7 NSWLR 1 [10].
[5]Fox v Percy (2003) 214 CLR 118 [128] (Gleeson CJ, Gummow and Kirby JJ).
The tribunal carefully considered the evidence available. It found that all relevant communications came from Zahel.[6] It found that Barbara was not a convincing witness.[7]
[6]T1-46, 15 – 35.
[7]T1-46, 44 – T1-47, 8.
The tribunal was aware of, and dealt with, the fact that Zahel did not have a licence to trade in Queensland. It made the point that the work was done in Queensland and the contract was formed in Queensland.[8] The tribunal found,[9] correctly, that the lack of a licence was a matter for Zahel. Mr Farrell was entitled to be paid in Queensland.
[8]T1-47, 32 – 39.
[9]T1-47, 41 – 44.
The evidence can support the tribunal’s finding and I can find no reasons to come to a contrary view.
Orders
Leave to appeal should be refused.
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