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  • Unreported Judgment

Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd

 

[2019] QCAT 238

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd [2019] QCAT 238

PARTIES:

STEPHEN N LAFFEY & COASTALITE PTY LTD

(applicants)

v

L & V PROJECT POOLS PTY LTD

(respondent)

APPLICATION NO/S:

MCDO414/18

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

31 July 2019

HEARING DATE:

25 October 2018, 22 January 2019; 22 May 2019 (further hearing on the papers)

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

  1. The Cleaver document is admitted into evidence;
  2. L & V Project Pools Pty Ltd pay Coastalite Pty Ltd $25,000 being $23,716.00 inclusive of GST for claim and interest limited to $1,284.00;
  3. L & V Project Pools Pty Ltd pay Coastalite Pty Ltd the filing fee of $338.20; and
  4. Stephen Laffey’s claim for a money order in his favour is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Minor Civil Dispute – where applicants alleged oral agreement with respondent for services – where applicants claimed payment for hospital care of respondent’s former director before his death – where first applicant director of second applicant – where respondent’s former director brother of first applicant – where second applicant invoiced respondent for services ten months after brother’s death – where former director’s wife not informed of contract by deceased – where former director made substantial provision for family members other than first applicant in last will and testament – where respondent denied liability for invoiced care

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Minor Debt Claim – Standing to Sue – Jurisdiction – Justiciability – where respondent alleged no standing to sue – whether standing to sue established

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY – where respondent alleged former director lacked capacity to contract – whether incapacity proved

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where respondent alleged no intention to enter into contract – where presumption of intention to create contractual relations – where presumption rebuttable – where prior oral contracts – whether presumption rebutted

EVIDENCE – PROOF – STANDARD OF PROOF – where consideration for contract established – whether contract proved – whether services rendered – whether respondent liable in debt

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – where relevant documents must be produced at hearing – where relevant documents not so produced – where decision reserved – where applicants later received copy of relevant document from respondents accountant – where reopening application made – where further hearing ordered – where document admitted in evidence – where decision again reserved – whether applicants unnecessarily disadvantaged – whether decision in applicants favour on that ground appropriate

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Minor Debt Claim – Jurisdiction – Interest – Power to Award Interest – where applicants claimed interest – where sum of claim and interest exceeded $25,000 – whether claim including interest capped at $25,000 in minor civil disputes

Evidence Act 1997 (Qld), s 9, s 9A, s 9B, s 9C, s 9D

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(1), s 12(2), s 12(3), s 12(4), s 48(1), s 48(2), s 48(3), Schedule 3 – Dictionary

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 81(1), r 81(2)

AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95

Arowana Pty Ltd (t/a Choice IT Australia) v Scott [2019] QCATA 100

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493

Bristol and West Building Society v Mothew [1996] All ER 698

Bunning v Cross [1978] HCA 22

Chappell Co Ltd v Nestle Co Ltd [1960] AC 87

Currie v Misa (1875) LR 10 Ex 162

Ermogeneus v Greek Orthodox Community of SA Inc (2002) 209 CLR 95

Flast v Cohen (1968) 392 US 83

Jones v Padavatton [1969] 2 All ER 616

Korunich v Holliday [2013] QCATA 42

Merrit v Merrit [1970] 1 WLR 1211

Mesic v Kasovic [2016] QCATA 37

Owen v Menzies [2012] QCA 170

Satisfaction Software Pty Ltd v Sunshine Timber Treatment Pty Ltd [2012] QCAT 686

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173

University of Wollongong v Metwally (No. 2) [1985] HCA 28

Halsbury’s Laws of Australia

APPEARANCES & REPRESENTATION:

 

Applicant:

S Laffey personally and as director of Coastalite Pty Ltd, with C Greatorix

Respondent:

D Nash, solicitor of MacGregor O’Reilly Nash Solicitors

REASONS FOR DECISION

  1. [1]
    Some aspects of this decision may be distressing to the reader.
  2. [2]
    Stephen Laffey and his company Coastalite Pty Ltd (‘Coastalite’) claim payment of $23,716 plus interest and the filing fee from L & V Project Pools Pty Ltd (‘L & V Pools’) in these proceedings for a minor debt.
  3. [3]
    They do so on the basis that:

I had [sic] agreement with my brother Michael Laffey (L & V Project Pools) to put my life on hold to help him get his affairs in order from 1st Jan 2017 till he passes [sic] away.

His wish [sic] that I stay with him in hospital for the last 5 weeks as he did not want to die alone [due to him having terminal cancer].

The agreed fee was $40 per hour.

I was living in the hospital with him for 539 hours. I did not pursue this debt at the time, due to [sic] wife grieving.

  1. [4]
    L & V Pools denies the existence of the alleged agreement, relies on other defences to which I will refer later, and seeks dismissal of the Application because it says it has no liability.
  2. [5]
    The facts are as follows.
  3. [6]
    During his life, Michael Laffey was a highly awarded and very successful Gold Coast pool and spa builder who carried on business through his company, L & V Pools.
  4. [7]
    An ASIC search shows that he ceased being its sole director on 27 July 2017 when his wife Jan Laffey, now Jan Mazar (‘Ms Mazar’), was appointed in his place.
  5. [8]
    Michael Laffey’s brother, Stephen Laffey, worked for L & V Pools as a salesman and construction manager for many years.[1]
  6. [9]
    Prior to January 2017, Michael Laffey was diagnosed with a terminal illness.
  7. [10]
    He commenced the process of getting his affairs in order in or about January 2017 and, with the help of his brother, began arranging for the orderly transition and disposal of his business interests to others.
  8. [11]
    In part, that involved the realisation of some substantial assets.
  9. [12]
    The Applicants say that the agreement referred to in the Application was oral and that it was made at a meeting between Stephen Laffey and Michael Laffey at his home at 106 Commodore Drive, Paradise Waters on 1 January 2017.[2]
  10. [13]
    As will appear from the evidence to which I will also refer later, Michael Laffey remained involved in the company’s affairs after he was hospitalised at a private hospital on the Gold Coast from June 2017.[3]
  11. [14]
    He continued to take a keen interest in them until 10 August 2017, when he lost his battle with cancer.[4]
  12. [15]
    Stephen Laffey worked side by side with his brother between 7 January and 6 April 2017, and he ran outside business errands ‘everywhere’ in order to keep Michael Laffey’s business interests under control.
  13. [16]
    He also attended at his brother’s bedside when he underwent Leukaemia treatments.[5]
  14. [17]
    On 7 January 2017, Michael Laffey telephoned Stephen Laffey and asked him to attend a meeting at 106 Commodore Drive, Paradise Waters, Michael Laffey’s home, which he did.
  15. [18]
    The purpose of the meeting was to discuss and sign a Deed of Acknowledgement between the two brothers for the orderly disposition of Michael Laffey’s substantial investment in greyhounds.[6]
  16. [19]
    On 6 April 2017, Stephen Laffey was asked to attend and witness Michael Laffey signing his last will and testament (‘the will’) at 106 Commodore Drive, Paradise Waters,[7] which he did.
  17. [20]
    Exactly when, if at all, prior to searching for grant of probate and obtaining a copy of the will,[8] Stephen Laffey read the content of his brother’s will is unclear.[9]
  18. [21]
    He did not read the will when witnessing his brother’s signature.[10]
  19. [22]
    Michael Laffey made substantial provision for Ms Mazar and other family members in his will but not for Stephen Laffey.
  20. [23]
    From 6 April 2017 up until Michael Laffey’s death on 10 August 2017, Stephen Laffey continued working with his brother doing business errands and attending at his bedside in hospital.
  21. [24]
    He devoted virtually all his time to Michael Laffey’s health issues and business interests.[11]
  22. [25]
    In the period January to June 2017, through Coastalite, in accordance with existing business practice, Stephen Laffey issued a number of tax invoices[12] to L & V Pools for services rendered at the rate of $40 per hour for his brother and the company.
  23. [26]
    The invoices were dated 10/01/17, 24/01/17, 01/02/17, 07/02/17, 16/03/17, 22/03/17, 12/04/17, 19/04/17, 22/04/17, 03/05/17, 10/05/17, 17/05/17 and 29/06/17.
  24. [27]
    Most of the invoices lacked particularity of the services performed but they were all approved and paid by L & V Pools.[13]
  25. [28]
    Stephen Laffey said:

All those were paid. I was employed by my brother to – because he couldn’t drive; he had a tumour behind his eye – to be on call for him; to take him to his chemo; take him to his radiation; help him with his business. So I put all my business to the side. I stayed with him until he died, then on to the end of the year with his ex or his wife and so then she made the payments for my services.[14]

  1. [29]
    On 29 June 2018, approximately ten months after his brother’s passing, Stephen Laffey issued a Coastalite tax invoice[15] for services rendered to L & V Pools, payable within 7 days.
  2. [30]
    The invoice referred to the services rendered as:

Hospital care [sic] of Michael Laffey for the period 1 July to 10/8/18[16] [sic] … 539 hours x $40 - $21,560 plus GST $215.60, total $23,716 payable within 7 days.

  1. [31]
    It did not refer to individual dates on which the services were provided in the period, nor any description or dissection of the type of care provided.
  2. [32]
    Though it could have done so, L & V Pools did not call for particulars of the hospital care at any stage.
  3. [33]
    Reference to the GST component as $215.60 in the invoice was erroneous because GST at ten per cent is $2,156.00. However nothing turns on the error because the invoice total of $23,716 was correct.
  4. [34]
    Reference to hospital care to ‘10/8/18’ in the invoice was also erroneous, it should have read ‘10/8/17’, as Stephen Laffey admitted. Again, nothing turns on that error either.
  5. [35]
    Stephen Laffey said[17] that he delayed issuing the invoice out of consideration for Michael Laffey’s grieving widow, Ms Mazar.
  6. [36]
    He himself was still grieving the loss of his brother.[18]
  7. [37]
    A medical certificate issued by Dr Agnew Vayalirakkathu, Psychiatrist, dated 9 August 2018, filed in support of an application for legal representation of L & V Pools which I granted, confirmed that Ms Mazar had been diagnosed with a severe medical condition.
  8. [38]
    The doctor certified that Ms Mazar was then still struggling with grief, was extremely fragile, and that her condition was exacerbated by psychosocial stressors.
  9. [39]
    By its solicitors,[19] L & V Pools filed a Response dated 20 August 2019 in which it denied any liability in debt to Stephen Laffey and Coastalite and sought dismissal of the claim.
  10. [40]
    In summary, Annexure A[20] to the Response set out the defence as follows.
  11. [41]
    Firstly, L & V Pools said that no contract, whether oral or written, for payment of the claimed cost of care was formed and that there is no indebtedness as alleged or at all.
  12. [42]
    Secondly, L & V Pools said that Michael Laffey was mentally incapacitated whilst dying in hospital which rendered him incapable of entering into a contract for his brother Stephen to care for him there.
  13. [43]
    Thirdly, L & V Pools said that ‘the Application has no standing and should be dismissed and/or struck out.’
  14. [44]
    I will deal with the second leg of the defence first, that Michael Laffey lacked mental, and therefore legal, capacity to make a contract.
  15. [45]
    I asked Mr Nash, who appeared for L & V Pools, whether he wished to tender any medical evidence and hospital records on the question of mental capacity to counter Stephen Laffey’s sworn evidence that his brother was, until the end, of sound mind.
  16. [46]
    I did so because there is a rebuttable presumption of capacity,[21] L & V Pools had the onus to prove the rebuttal by credible evidence, and no such documents were filed with the Tribunal or tendered in evidence.
  17. [47]
    Mr Nash elected not to produce any medical evidence and hospital records going to the issue of mental capacity at the hearing on 22 January 2019.
  18. [48]
    He said L & V Pools was happy to ‘exclude that or read it as if it were not there.’[22]
  19. [49]
    He said that he accepted that Michael Laffey had ‘full capacity at the time of the alleged agreement.’[23]
  20. [50]
    He said that there were ‘periods of diminished capacity not relevant to the time the agreement was said to have arisen’[24] but produced no evidence in support.
  21. [51]
    However, affidavit evidence of the following witnesses for L & V Pools filed before the hearing on 22 January 2019 proved that Michael Laffey was of sound mind almost until the day he died.
  22. [52]
    Mr Brent Colville, Director and QBCC Nominee Supervisor of a company called L & V Project Pools (Aust) Pty Ltd, gave evidence for the Respondent in an affidavit sworn on 22 November 2018.
  23. [53]
    L & V Project Pools (Aust) Pty Ltd bought Michael Laffey’s swimming pool and spa business from L & V Pools[25] before he passed away.
  24. [54]
    Mr Colville said:

Even when ill and almost to the absolute end, Michael showed a keen interest in the overall running of his companies. The interest extended even to the running [sic] of those companies after he sold them (effective 1 July 2017). He would get the minute detail, as he saw fit [sic] and whenever we needed his advice and wished to be involved as much as possible.

  1. [55]
    Mr Colville’s evidence was not contradicted by Ms Mazar or any of the other witnesses for L & V Pools.
  2. [56]
    The quoted excerpt from Mr Colville’s affidavit proved that Michael Laffey continued directing L & V Pools from hospital, even after his formal resignation as director on 27 July 2017.
  3. [57]
    That was corroborated by the evidence of Rachel Cleaver, previously a fulltime employee of L & V Pools.
  4. [58]
    Ms Cleaver said in an affidavit that Michael Laffey continued to notify her of anticipated invoices and amounts payable and continued giving her instruction to pay invoices received during his hospitalisation.[26]
  5. [59]
    The combined evidence of Mr Colville and Ms Cleaver on this issue proved Michael Laffey’s soundness of mind and the sufficiency of his mental capacity to enter into a contract almost until the day he died.
  6. [60]
    So too did Stephen Laffey’s extensive evidence of his brother’s mental capacity throughout, referred to in paragraphs 13.1 to 13.11 of his affidavit sworn on 7 November 2018.
  7. [61]
    In the absence of any hospital and medical evidence, L & V Pools’ defence alleging Michael Laffey’s mental incapacity therefore fails.
  8. [62]
    I will next deal with the third leg of L & V Pools, defence, the alleged lack of standing of Stephen Laffey and Coastalite to sue.
  9. [63]
    In their written submissions dated 22 January 2019,[27] L & V Pools’ solicitors submitted that Stephen Laffey and Coastalite had no standing to sue because Michael Laffey had no capacity to contract.
  10. [64]
    That submission erroneously conflated standing to sue with justiciability of the dispute.
  11. [65]
    The Applicants asserted a cause of action in contract between the parties in their Application for a minor debt.
  12. [66]
    The corporate existence of Coastalite and L & V Pools respectively was (and is) not in dispute in these proceedings.
  13. [67]
    That sufficed to establish standing to sue for the following reasons.
  14. [68]
    Stephen Laffey and Coastalite have, and at all material times had, ‘a special interest in the subject matter’ of the claim within the meaning of that phrase in the High Court decision in Australian Conservation Foundation v The Commonwealth.[28]
  15. [69]
    That is the common law test for ascertaining whether a party has locus standi (standing to sue) according to Australian common law.
  16. [70]
    In addition to being recognised by the common law of Australia, standing to sue may also be conferred by statute, as it is in this case.[29]
  17. [71]
    The proceeding in this case was brought by way of a Form 3 Application for minor civil dispute – minor debt claim.
  18. [72]
    The term ‘minor civil dispute’ is defined in the Schedule 3 Dictionary of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) as meaning, amongst other things, a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount.
  19. [73]
    The ‘prescribed amount’ is defined in the Schedule 3 Dictionary as meaning $25,000.00. That is, $25,000 including any interest claimed but excluding the filing fee.
  20. [74]
    In conferring minor civil dispute jurisdiction on the Tribunal to hear and determine a minor civil dispute, section 12 of the QCAT Act provides that a ‘relevant person’ may apply to the Tribunal to recover a debt or liquidated demand of money limited to the prescribed amount[30]
  21. [75]
    In terms of section 12(4)(a) of the QCAT Act, a ‘relevant person’ means a person to whom a debt is owed, i.e. the creditor, or to whom money is payable.
  22. [76]
    In the words of Warren C.J. in Flast v Cohen[31] quoted and cited by Murphy J[32] in his dissenting judgment in Australian Conservation Foundation v The Commonwealth:

In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper person to request an adjudication of a particular issue and not whether the issue itself is justiciable.

  1. [77]
    Stephen Laffey and Coastalite were the proper persons to request an adjudication of the minor debt claim in this case and they did so by filing the Application.
  2. [78]
    It follows that Stephen Laffey and Coastalite, as persons to whom it is claimed a debt is owed or to whom it is claimed that money is payable, had (and have) standing to sue.
  3. [79]
    Whether or not their claim succeeds is another matter.
  4. [80]
    L & V Pools’ defence of lack of standing to sue therefore also fails.
  5. [81]
    I now return to the remaining (first) leg of the defence, the bare denial of the existence of the alleged contract and an indebtedness of L & V Pools.
  6. [82]
    The question is whether the Applicants have discharged the onus which they bear to prove on the balance of probabilities the contract, the performance of services (hospital care) pursuant to the contract, and the liability in debt of L & V Pools to Coastalite.
  7. [83]
    As I earlier noted, Stephen Laffey said that the oral agreement upon which Coastalite issued the tax invoice on 29 June 2018 was made at his brother’s home at 106 Commodore Drive, Paradise Waters on 1 January (New Year’s Day) 2017.
  8. [84]
    I do not accept that the alleged agreement was formed on that date.
  9. [85]
    Ms Mazar gave evidence that Michael Laffey could no longer drive a car at that stage because of his illness and that he spent the period between 30 December 2016 and 2 January 2017 with her and their son Jackson at Rydges Southbank in Brisbane to watch New Year’s Eve fireworks.
  10. [86]
    She also said that Stephen Laffey did not visit Michael Laffey at Rydges Southbank in that period.[33]
  11. [87]
    I accept her undisputed evidence.
  12. [88]
    I therefore must consider and decide whether Stephen Laffey was mistaken in giving evidence that 1 January 2017 was the date on which the agreement was made.
  13. [89]
    If I decide that Stephen Laffey’s evidence was fabricated then it follows that he perjured himself and I must dismiss the Application as an abuse of process.
  14. [90]
    On the totality of the evidence in this case including that to which I will refer later, I find that it is probable that Stephen Laffey was mistaken in swearing that the agreement in question was made on 1 January 2017.
  15. [91]
    He struck me as a relatively unsophisticated, broad brush personality who struggled with language at times. His support person, Mr Greatorix, informed me that Stephen Laffey suffers from dyslexia.
  16. [92]
    Like Ms Mazar, Stephen Laffey had been seeing a psychiatrist[34] in the lead up to the hearing.
  17. [93]
    I accept that the legal process culminating in the hearings will have been a very stressful time for both Stephen Laffey and Ms Mazar.
  18. [94]
    There is no doubt that Stephen Laffey’s evidence was inconsistent in some respects, however he did not strike me as a dishonest witness.
  19. [95]
    Ms Mazar’s answer on oath to a question in re-examination from L & V Pools’ solicitor Mr Nash[35] assisted Stephen Laffey’s case somewhat on the date of the alleged agreement.
  20. [96]
    The following exchange occurred:

MR NASH:  Do you recall any meeting at Commodore Drive … in any time that – around the time that you returned from Rydges or thereafter?

MS MAZAR: I can’t remember whether there was or wasn’t. Because Stephen was coming around a bit here and there anyway.

  1. [97]
    It is apparent from Ms Mazar’s answer that she could not exclude the possibility that a meeting of the two brothers did occur, not on 1 January 2017 but thereabouts.
  2. [98]
    Ms Mazar also struck me as an honest witness doing her best in difficult circumstances.
  3. [99]
    As I have already found, there was a meeting between the two brothers on 7 January 2017 at 106 Commodore Drive, Paradise Waters.
  4. [100]
    Mr Nash cross examined Stephen Laffey on his evidence that Michael Laffey telephoned and asked him to come over to his home in Paradise Waters on 1 January 2017.
  5. [101]
    The following exchange[36] is relevant:

MR NASH: Well, Mr Laffey, was – sorry, Michael, the deceased, was not at his home in Paradise Waters. Why would he ask Mr Laffey …

MR LAFFEY: That might have been a [indistinct] this has been long, as you said – long and drawn out.

MR NASH: How many times …

MR LAFFEY: Just – I’m talking. I was there on the 7th, with the agreement, signed in front of the witnesses, at his place. We had an agreement, a knowledge. What I don’t understand – I was employed by Michael as a salesperson. We had no written agreements; I sold swimming pools for him. I was employed as a construction manager. We didn’t have no written agreement, but he had 110 greyhounds which he transferred to my name in the Deed of Acknowledgment. So before he passed away, he wanted to sell it. So while in the hospital, not only was I looking after him, we had sold $117,000 worth of dogs. Because I’m only the nominee, he’s the owner, we had to sign them all. So all this had to be done at the hospital, and a great deal of time and paperwork. So all the money – the 117,000 went to the estate. But for my time, I received nothing, and this is what the dispute’s over. We had an – an agreement, and we also (have) a stat dec, which they probably won’t accept, from someone else that was caring at the hospital. I had the stat dec done up, hoping that it would consult before we come here. When they failed to consult, well, the stat dec was done with the other person that was in the hospital, caring.

  1. [102]
    Stephen Laffey later said that agreement was reached ‘around the 7th of January when we signed a Deed of Acknowledgment.’[37]
  2. [103]
    Later still, he said that there were two oral agreements, the second of which at the hospital on 1 July 2017,[38] and admitted that he had not referred to that in his affidavit.[39]
  3. [104]
    Ultimately, however, he said that there was just one agreement in early January 2017 that he would put his company on hold to be with his brother until he passed away.[40]
  4. [105]
    I accept that evidence, notwithstanding the prior inconsistencies.
  5. [106]
    In reference to the Deed of Acknowledgement dated 7 January 2017 for disposition of Michael Laffey’s greyhounds, Stephen Laffey said:

So that was the agreement. The agreement just continued on. As he was in hospital, we were still dealing with his dog problems and looking after him so the – the – agreement just continued on.[41]

  1. [107]
    The statutory declaration, to which Stephen Laffey referred in his answer to Mr Nash’s questioning in the exchange which I quoted was that of former employee Ross Stuart Salter (‘Mr Salter’) filed by leave.[42]
  2. [108]
    In it, Mr Salter said:

I was an employee, Plumber and General Overseer, for the late Michael Laffey, the owner of L & V Project Pools Pty Ltd for over 28 years and was a close friend and confidante of Michael’s up until his recent demise.

As he became sicker and was hospitalised, he stated to me that he wanted his brother Stephen to spend as much time with him as possible to attend to his business affairs.

I purchased a camp stretcher and put it in his room as he wanted Stephen there full time to take instructions to run his business and general affairs. He was fully aware of his matters and gave directions up to the time of his passing.

Stephen was with him during the week and I took over on weekends.

During the last couple of weeks I contracted influenza and could not attend Michael but Stephen increased the time he spent there and was at Michael’s beck and call.

He insisted that we were to be paid for helping him, despite my objections for myself, and stated in my presence that he wanted Stephen paid for all that he was doing.

I cannot say enough about Stephen’s hard work and loyalty to his brother [sic] Michael would not have been able to run things without Stephen.

  1. [109]
    Though not evidence of an oral agreement between the brothers made in January 2017, Mr Salter’s evidence of what Michael Laffey said to him at the hospital was not inconsistent with the existence of the alleged earlier agreement between Michael and Stephen Laffey on behalf of their respective companies.
  2. [110]
    Importantly, Mr Salter’s evidence proved Michael Laffey’s stated intention that both Mr Salter and Stephen Laffey should be paid for their time helping him whilst in hospital.
  3. [111]
    In that loose non legal sense, there was a ‘second agreement’ to which Stephen Laffey referred but was not privy.
  4. [112]
    Mr Nash, for L & V Pools, objected to Mr Salter’s statutory declaration being tendered in evidence but subsequently withdrew that objection.
  5. [113]
    Mr Salter was not required to present himself for cross examination.
  6. [114]
    I therefore accept the undisputed evidence of Mr Salter in his statutory declaration in its entirety.
  7. [115]
    However, L & V Pools’ solicitors submitted that I should find that there was no contract as alleged and dismiss the claim in the absence of corroborative evidence supporting Stephen Laffey and his company and an agreement in writing.[43] 
  8. [116]
    L & V Pools’ witnesses testified that Michael Laffey never informed them of any agreement between the brothers in the terms alleged by Stephen Laffey.
  9. [117]
    Ms Mazar said that it was her husband’s practice ordinarily to ‘endeavour’ to inform her of ‘any business, family, personal or other financial arrangements in place such that I was aware of our finances.’
  10. [118]
    She said that Michael Laffey never informed her of an agreement for Stephen Laffey to stay with him in hospital.[44]
  11. [119]
    That evidence was equivocal because it implied that Michael Laffey did not invariably inform Ms Mazar of all business and financial arrangements between him and others.
  12. [120]
    It did not prove that there was no such agreement, only that Ms Mazar was not told of the agreement before her husband’s death.
  13. [121]
    Brent Colville, some of whose evidence I have already referred to, said he was employed by L & V Pools for ten years and that he was aware of several agreements between Stephen Laffey and L & V Pools over that period.[45]
  14. [122]
    He did not say that any of the number of those agreements were in writing.
  15. [123]
    Mr Colville said that, if there was no written agreement, Michael Laffey or Michelle Cleaver would inform him of any invoices to be paid and when to pay them.[46]
  16. [124]
    He said that he was responsible for approving invoices issued by Stephen Laffey through Coastalite in relation to other L & V Pools and L & V Project Pools (Aust) work.[47]
  17. [125]
    Mr Colville said that Michael Laffey never discussed any agreement that Stephen Laffey be paid for his hospital attendances with him.[48]
  18. [126]
    Again, that did not prove that there was no such agreement but only that he did not know about it.
  19. [127]
    Michaela Laffey, Ms Mazar’s daughter, gave evidence that she attended a meeting between Stephen Laffey and her mother on 31 October 2017 when certain issues were discussed.
  20. [128]
    Other than stating that Stephen Laffey was verbally aggressive, that he said he’d challenge the will and would ‘come after her mother’[49] if he were not paid, Ms Laffey did not say what those issues were.
  21. [129]
    Whatever they were, the issues plainly could not have pertained to the Coastalite invoice for $23,716.00 because it was only issued on 29 June 2018.
  22. [130]
    Ms Laffey’s evidence went no further than proving an unpleasant disagreement about something.
  23. [131]
    It does not permit the inference that there was no oral agreement as alleged in this case.
  24. [132]
    According to the submissions of L & V Pools’ solicitors dated 22 January 2019,[50] Ms Laffey’s evidence proved that the Applicants’ claim is vexatious because Stephen Laffey was not a beneficiary under Michael Laffey’s will.
  25. [133]
    Therefore, they said, he was not entitled to recover money in this case.
  26. [134]
    I reject the submission because the conclusion of vexation does not follow logically from Stephen Laffey’s non-inheritance.
  27. [135]
    I also reject the implication that this is a claim for inheritance by stealth because that is simply not the case.
  28. [136]
    Nor is this a claim in contract against an executor of the deceased estate of Michael Laffey.
  29. [137]
    This is simply a claim in contract against L & V Pools, a company currently incorporated and registered, to recover a debt.
  30. [138]
    It follows that neither the Applicants nor the proceedings that they bring in this case are vexatious as alleged by L & V Pools’ solicitors.
  31. [139]
    The last of the witnesses who gave evidence for L & V Pools was Rachel Cleaver to whose evidence I now turn.
  32. [140]
    Ms Cleaver said that she is an employee of L & V Project Pools (Aust) Pty Ltd and that she worked for L & V Project Pools Pty Ltd between 2006 and 2017 when Michael Laffey was sole director.
  33. [141]
    Her duties were receiving, and paying, invoices and attending to administration.[51]
  34. [142]
    She said that, prior to his hospitalisation, Michael Laffey would notify her of incoming invoices and amounts payable and approve actual payments.
  35. [143]
    If an unexpected invoice arrived or if there was a discrepancy in the amount of an expected invoice, she said that she would consult Michael Laffey and make payment if directed by him to do so.[52]
  36. [144]
    As I earlier noted, she said that this process continued during his hospitalisation[53] which proved that Michael Laffey continued to direct the business of L & V Pools from hospital after Ms Mazar became its sole director.
  37. [145]
    Ms Cleaver said that the only time she was not informed of a tax invoice was if it did not relate to the company.[54]
  38. [146]
    She said she was aware of various agreements between Michael and Stephen Laffey over the course of her employment[55] and that she’d be informed each time and told of anticipated invoices and amounts.[56]
  39. [147]
    She said that the only exception was if the agreement was between the brothers personally, in which event the company would not be required to make payment.[57]
  40. [148]
    However, Ms Cleaver’s evidence was confined to matters within her knowledge and did not establish that it never happened otherwise.
  41. [149]
    She did not give evidence that any of the various agreements to which she referred were ever in writing.
  42. [150]
    Ms Cleaver said that she was never informed by Michael Laffey of any agreement between him and Stephen Laffey relating to Stephen’s hospital attendances ‘and/or process server fees.’[58]
  43. [151]
    Again, that evidence did not prove there was no such agreement.
  44. [152]
    Ms Cleaver omitted from her affidavit certain important evidence within her personal knowledge concerning the payment of Mr Salter on Michael Laffey’s instructions.
  45. [153]
    Stephen Laffey only found out about this after I had reserved my decision.
  46. [154]
    He had attended the office of Robert Morrison, L & V Pools’ accountant and joint executor together with Ms Mazar of Michael Laffey’s deceased estate.
  47. [155]
    Mr Morrison handed him a copy of a document entitled ‘L & V Project Pools Pty Ltd – Purchases Supplier detail – June 2017 through to June 2019’ that had been prepared by Rachel Cleaver for taxation purposes.
  48. [156]
    I will refer to it as the Cleaver document.
  49. [157]
    In it, Ms Cleaver had recorded certain payments made by her on behalf of L & V Pools to certain payees for services.
  50. [158]
    Insofar as is relevant to this case, the Cleaver document recorded the following payments by L & V Pools between July and August 2017 prior to Michael Laffey’s death:

26/7/2017 5-0270 Ross Looking after Michael on L & V Aust time – 26 hours @ $65.00hr - $1,690 ... GST ... Closed

26/7/2017 5-0270 Ross at the hospital for 6 nights and as agreed by Michael 8hrs pay/night = 48 [email protected]$37.25 paid through L & V (Aust) wages - $1,788.00 ... GST ... Closed.

3/8/2017 5-0295 Rossco 1 night at the hospital paid through L & V (Aust) [email protected]$37.25/hr - $298.00 ... GST … Closed

  1. [159]
    ‘Ross’ and ‘Rossco’ named in the Cleaver document was (and is) Ross Salter, the witness who gave evidence in support of Mr Laffey’s case in his statutory declaration to which I referred earlier.
  2. [160]
    Following receipt of the Cleaver document, Stephen Laffey promptly applied by letter to the Tribunal for a reopening of the case.
  3. [161]
    I ordered the parties to file submissions, which they did, and I later ordered a further hearing on the papers with respect to the Cleaver document because no final decision had been made at that stage.
  4. [162]
    L & V Pools’ solicitors filed written submissions with the Tribunal on 20 May 2019 under cover of an accompanying letter signed by Mr Nash.
  5. [163]
    They objected on the following basis to the Cleaver document being admitted in evidence.
  6. [164]
    Firstly, they said, the Cleaver document was unlawfully obtained because Mr Morrison breached a fiduciary duty owed to the estate of the late Michael Laffey to act in its best interests, not to its detriment.
  7. [165]
    They said that Mr Morrison had not sought permission of Ms Mazar, L & V Pools, or its solicitors, to show the document to Stephen Laffey or give him a copy.
  8. [166]
    They cited Bristol and West Building Society v Mothew[59] in which Justice Millet LJ said:

A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.

  1. [167]
    On the other hand, Mr Laffey said that the failure to produce the Cleaver document at the hearing on 22 January 2019 was deliberate, an attempt to mislead the Tribunal.
  2. [168]
    L & V Pools’ solicitors submitted that this was ‘untrue and nonsensical’ but did not say why.
  3. [169]
    They submitted that Stephen Laffey had failed to support the allegations in evidence.
  4. [170]
    Their submission overlooked the fact that the content of the Cleaver document spoke to its own relevance.
  5. [171]
    They did not explain why it had not been produced or referred to by Ms Cleaver or anyone else associated with L & V Pools at any stage of the hearing.
  6. [172]
    They submitted that Mr Salter’s employee invoices referred to in the Cleaver document had been paid in accordance with the payment process outlined in Ms Cleaver’s affidavit.
  7. [173]
    They said that Mr Salter’s invoices were paid by Ms Cleaver prior to Michael Laffey’s death on 10 August 2017.
  8. [174]
    Even so, that submission overlooked the fact that L & V Pools had not produced the Salter invoices and ledger of L & V Pools which obviously predated Ms Cleaver’s affidavit and that they were also relevant.
  9. [175]
    In particular, the Cleaver document, together with Mr Salter’s invoices and the internal ledger records of L & V Pools reflecting the reason for the payments, was relevant to whether a similar antecedent agreement existed between the parties in this case and whether Stephen Laffey should also be paid for his services.
  10. [176]
    L & V Pools’ solicitors submitted that the Applicants had not proved their case and that the proceeding should therefore not be re-opened.
  11. [177]
    They submitted that if, hypothetically, it was established that an agreement and/or contract as alleged by Stephen Laffey existed then it could not be determined that the parties had an intention to create legal relations.
  12. [178]
    Those submissions did not relate to the objection to production and admission of the Cleaver document into evidence but it is convenient to deal with them at this point.
  13. [179]
    L & V Pools’ solicitors referred to Merrit v Merrit[60] and Ermogeneous v Greek Orthodox Community of SA Inc[61] in support of the proposition that agreements made in familial circumstances are based on natural love and affection and are not intended to have legal consequences.
  14. [180]
    They also referred to the decision of Salmon LJ in Jones v Padavatton[62] and that ‘experience of life shows that close relatives do not usually intend the various arrangements which they make to create legal relations and that they prefer to rely on family ties of mutual trust and affection.’
  15. [181]
    However, the outcome in each case turns on its own particular facts.
  16. [182]
    It does not invariably follow that contractual agreements for remuneration are never made in unusual circumstances such as those in the present case.
  17. [183]
    Also, there is a presumption in commercial arrangements that parties intend to be legally bound.[63]
  18. [184]
    The presumption is rebuttable by credible evidence but mere assertion to the contrary in submissions is insufficient.
  19. [185]
    The Cleaver document proved that L & V Pools paid Mr Salter for his attendances in looking after Michael Laffey at hospital, the very things that Stephen Laffey also did.
  20. [186]
    It corroborated Mr Salter’s evidence that Michael Laffey intended that both he and Stephen Laffey be paid for their time at the hospital with him.
  21. [187]
    By their qualifications and specialist expertise, solicitors who appear with leave of the Tribunal in a minor civil dispute such as this are presumed to know the QCAT Act, the QCAT Rules and the Tribunal’s practices and procedures.
  22. [188]
    Rule 81(1) of the QCAT Rules provides that one party to a minor debt claim cannot require the disclosure of documents in the possession or control of another party that are directly relevant to an allegation in issue in the proceeding unless the Tribunal orders otherwise.
  23. [189]
    However, rule 81(2) of the QCAT Rules provides that all parties to the proceeding must (my emphasis) make all relevant documents available at the hearing of it.
  24. [190]
    The duty to do so is only discharged by production of all relevant documents to the Tribunal at the hearing.
  25. [191]
    The Tribunal may be misled and justice may miscarry where a party fails to comply with the requirement.
  26. [192]
    L & V Pools and its solicitors breached rule 81(2) by not producing the Cleaver document, the Salter invoices and the internal company ledger which the Cleaver document summarised in relevant respects, at the hearing.
  27. [193]
    No explanation of the reason for the breach was proffered by L & V Pools or its solicitors.
  28. [194]
    Rather than belatedly conceding the admissibility and relevance of the Cleaver document, L & V Pools’ solicitors maintained their objection to it being produced and admitted in evidence after Stephen Laffey perchance received it.
  29. [195]
    That conduct compounded L & V Pools’ breach of the strict requirements of Rule 81(2).
  30. [196]
    Also relevant is that it was only in closing submissions at the hearing on 22 January 2019 that Mr Nash for the first time referred to L & V Pools having paid Mr Salter for his hospital time with Michael Laffey.[64] 
  31. [197]
    He had a duty to enquire of his client about the existence of any relevant related document for production to the Tribunal because he was aware that Ms Cleaver had said nothing about the payments to Mr Salter in her affidavit drawn by his firm.
  32. [198]
    Whether or not Mr Nash did make that enquiry, and what he was told in that event, is not clear from the evidence.
  33. [199]
    Nor is it clear whether L & V Pools of its own accord told Mr Nash of the existence of the Cleaver document and the underlying documents.
  34. [200]
    What is clear is that both L & V Pools and its solicitors remained in deliberate breach of the requirement to produce those documents even after the Cleaver document came into Stephen Laffey’s hands through Mr Morrison.
  35. [201]
    Mr Nash had said it was ‘morally reprehensible that a man can spend time with his brother and then invoice him for it.’[65]
  36. [202]
    Though he later retracted that statement under protest of Mr Greatorix, Stephen Laffey’s support person, there was (and is) nothing morally or legally reprehensible about a man spending time with his dying brother and invoicing his company for payment where that had been agreed.
  37. [203]
    Nor is there anything reprehensible in holding parties to the performance of their contractual obligations.
  38. [204]
    The submission that Mr Morrison, L & V Pools’ accountant and an executor of the deceased estate, breached his fiduciary duty by making the Cleaver document available to Stephen Laffey is without substance.
  39. [205]
    The production of a copy of the Cleaver document to Stephen Laffey by L & V Pools’ accountant, Mr Morrison, belatedly fulfilled the requirement of Rule 81(2).
  40. [206]
    Stephen Laffey’s production of the copy of the Cleaver document to the Tribunal when applying to reopen the proceeding fulfilled his duty to make it available once in his hands.
  41. [207]
    Therefore, neither Mr Morrison’s delivery of the Cleaver document to Stephen Laffey nor his receipt of it was unlawful.
  42. [208]
    Conversely, the failure of L & V Pools and its solicitors to produce the Cleaver document and the underlying documents at the hearing on 22 January 2019 was unlawful.
  43. [209]
    A miscarriage of justice may have occurred had the document never surfaced.
  44. [210]
    Further and in any event, this Tribunal is not bound by the rules of evidence and may inform itself of any matter in any way it sees fit.
  45. [211]
    Australian Courts and Tribunals retain a discretion to accept (or reject) evidence even if it has been obtained unlawfully,[66] and this Tribunal is a Court.[67]
  46. [212]
    I would have accepted the Cleaver document in evidence even if it had been obtained by unlawful means because it was relevant and pivotal.
  47. [213]
    Accordingly, the Cleaver document is admitted into evidence and I have taken it into account in arriving at my decision in this case.
  48. [214]
    On the totality of the evidence in this case, having had regard to the submissions of the parties and L & V Pools’ solicitors, I find that Stephen Laffey and Coastalite have discharged the onus of proving the agreement on which the claim is based.
  49. [215]
    I find that it is more probable than not that Michael Laffey and Stephen Laffey, as directors on behalf of their respective companies L & V Project Pools Pty Ltd and Coastalite Pty Ltd, on or about 7 January 2017 orally agreed that Stephen Laffey would ‘put his life on hold’ to assist his brother Michael Laffey and his company to get his affairs in order.
  50. [216]
    I find that the agreement included Stephen Laffey prospectively staying in hospital with his brother until he eventually died.
  51. [217]
    I find that Stephen Laffey’s agreement to subordinate his and Coastalite’s time and business interests to those of Michael Laffey and L & V Pools constituted the consideration for the agreement that L & V Pools would pay Coastalite $40 plus GST per hour for Stephen Laffey’s time in doing so.
  52. [218]
    As Senior Member Stilgoe (as she then was) of the Tribunal said in Korunich v Holliday,[68] good consideration does not need to have a value comparable to the promise.[69]
  53. [219]
    As Member Favell of the Tribunal said in Satisfaction Software Pty Ltd v Sunshine Timber Treatment Pty Ltd,[70] consideration may be either a benefit to the promisor or a detriment to the promisee.[71] For example, where he renders services in exchange for the promise.[72]
  54. [220]
    The consideration for the contract in this case was mutual.
  55. [221]
    It embodied the subordination of the interests of Stephen Laffey and Coastalite to those of L & V Pools and Michael Laffey in consideration of the benefit of payment by L & V Pools of $40 plus GST per hour to Coastalite for the services to be rendered.
  56. [222]
    It also embodied the detriment to L & V Pools of having to pay Coastalite $40 plus GST per hour for the benefit of the services to be rendered.
  57. [223]
    I find that the agreement that Coastalite would be paid at the rate of $40 per hour plus GST for the time that Stephen Laffey spent with Michael Laffey included time spent in providing care for, and support to, him whilst in hospital.
  58. [224]
    I find that ‘hospital care’ included (to use Ross Salter’s words) Stephen Laffey being present day and night as required to take instruction from his brother, to attend to his directions, financial affairs, needs and requirements and his being there to support and console his brother during the final days of his life.
  59. [225]
    I find that Stephen Laffey did so.
  60. [226]
    I find that L & V Pools continued to be bound by the agreement after Ms Mazar became its director, even though she apparently did not know about it.
  61. [227]
    I find that none of the other agreements between the brothers through their companies from time to time over the years were ever in writing apart from the Deed of Acknowledgment.
  62. [228]
    Therefore, no inference adverse to the Applicants arises by reason of the absence of a written agreement.
  63. [229]
    Neither, on all of the evidence to which I have referred, does any inference adverse to the Applicants arise from the alleged failure of Michael Laffey to tell Ms Mazar, associates and staff, of the agreement.
  64. [230]
    I find that the fact that the agreement underpinning the claim in this case was not in writing was consistent with the history of the brothers’ contractual dealings over many years and unremarkable in the circumstances.
  65. [231]
    As Stephen Laffey said:[73]

Mike and I were in our 60s. We’re working the same job all our lives. We’ve had a verbal [indistinct] have to. We didn’t have to put everything in writing every time. So, we were in many ventures together. We were in the pool business for 35 years together. We were on drilling rigs for 15 years. Everything – we’re brothers. A handshake, a man’s word’s his bond. We didn’t have to have an agreement every time we done something you know. So, while he was sick, he asked me to come and help him. I’ve done everything he asked for. Okay. Simple as that.

  1. [232]
    I find that there is no credible evidence to contradict Stephen Laffey’s evidence that he spent a total of 539 hours with Michael Laffey for which Coastalite invoiced L & V Pools on 29 June 2017 pursuant to the agreement.
  2. [233]
    I do so on the basis that L & V Pools and its solicitors merely denied the existence of the agreement.
  3. [234]
    They focussed entirely on that and did not seek to challenge or cross examine Stephen Laffey on the make-up of the hours spent, the dates, the times, the activities and the services provided, for which Coastalite invoiced L & V Pools.
  4. [235]
    That was their prerogative, however L & V Pools is bound by the way its defence was conducted.[74]
  5. [236]
    I find that the delay in issuing the Coastalite invoice was satisfactorily explained by Stephen Laffey in the evidence to which I have already referred and that the delay was understandable and reasonable in the circumstances.
  6. [237]
    No inference adverse to the Applicants arises from the delay.
  7. [238]
    I find that the absence of forewarning of the prospective arrival of the invoice in accordance with historical standard business practice was as unsurprising as it is irrelevant because approval could not come from the afterlife.
  8. [239]
    Michael Laffey’s statement in hospital to Mr Salter that his brother (and Mr Salter) should be paid for the services provided anticipatory approval for L & V Pools to pay invoices on that account in due course.
  9. [240]
    In circumstances where he bequeathed nothing to his brother, one might reasonably ask whether Michael Laffey also intended that Coastalite should not be paid for Stephen Laffey’s time in hospital attending to his every requirement and being present when he died.
  10. [241]
    Mr Salter’s evidence provides the answer.
  11. [242]
    On the evidence and in the circumstances to which I have referred, I consider it only fair and equitable that Coastalite’s claim should be paid.
  12. [243]
    L & V Pools is therefore liable in contract and indebted to Coastalite as claimed and I will so order.
  13. [244]
    One last issue needs to be addressed before I make final orders.
  14. [245]
    Stephen Laffey submitted that L & V Pools attempted to mislead the Tribunal and obtain an outcome favourable to the Respondent by supressing the existence of the Cleaver document.
  15. [246]
    I have carefully considered that submission and accept that L & V Pools’ failure to disclose it was intentional and detrimental to the Applicants. It should not be let go without consequence.
  16. [247]
    The Applicants were put to the unnecessary inconvenience of having to apply to the Tribunal for its admission into evidence and prepare submissions for the further hearing.
  17. [248]
    Section 48(1) of the QCAT Act applies if the Tribunal considers that a party to a proceeding is acting in a way that unnecessarily disadvantages another party, including by not complying with this Act and the rules or causing an adjournment or attempting to deceive another party or the Tribunal or vexatiously conducting the proceeding.[75]
  18. [249]
    If the party causing the disadvantage is not the applicant for the proceeding, section 48(2) of the QCAT Act provides that the Tribunal may make its final decision in the proceeding in the applicant’s favour.[76]
  19. [250]
    Section 48(3) of the QCAT Act requires that the Tribunal must have regard to (a) the extent to which the party causing the disadvantage is familiar with the Tribunal’s practices and procedures; (b) the capacity of the party causing the disadvantage to understand, and act on, the Tribunal’s orders and directions; and (c) whether the party is acting deliberately.
  20. [251]
    In Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7, Member Hughes distinguished mere disadvantage from unnecessary disadvantage in analysing the law and case precedent.
  21. [252]
    Most parties to proceedings in the minor civil dispute jurisdiction of the Tribunal are unrepresented, legally inexperienced lay people. It follows that the Tribunal will be careful and circumspect before invoking the sanction in section 48(2) where it is perceived that an unrepresented litigant has behaved unacceptably in the course of a Tribunal proceeding.
  22. [253]
    However, in this case, L & V Pools was formally represented by solicitors who had been involved from the outset in the preparation of documents that included the defence attached to the Response.[77]
  23. [254]
    L & V Pools’ solicitors, and their client through them, had the requisite capacity to, and did, understand the Tribunal’s practices and procedures and the disadvantage that would be caused to Stephen Laffey and Coastalite by the way in which they conducted the defence.
  24. [255]
    Overall, I am satisfied that the L & V Pools and its solicitors acted deliberately in:
    1. (a)
      asserting, and maintaining, the defences of lack of contractual capacity and lack of standing to sue which had no prospect of success, even on their own evidence;
    2. (b)
      objecting to the production and admissibility of the Cleaver document even after it had been belatedly produced by Mr Morrison, L & V Pools’ company accountant and co-executor with Ms Mazar of the deceased estate of the late Michael Laffey;
    3. (c)
      objecting to a further hearing rather than conceding the relevance and admissibility of the Cleaver document and consenting to orders accordingly;
    4. (d)
      causing a further hearing, albeit on the papers, to deal with the issue of the Cleaver document; and
    5. (e)
      delaying the Tribunal’s decision.
  25. [256]
    Tribunal Member Dr JR Forbes in Arowana Pty Ltd (t/a Choice IT Australia) v Scott [2019] QCATA 100, albeit in an entirely different factual context to that in the present case, aptly summarised the following duties owed by (all) litigants in this Tribunal.
  26. [257]
    Citing decisions of the High Court and other case precedents, Dr Forbes said[78] that finality in litigation, particularly in the minor civil dispute jurisdiction, is important to conserve the resources of the taxpayer and the Tribunal, and to ensure that other litigants are not unduly delayed.
  27. [258]
    He added that the responsibility of litigants in QCAT to attend to their own interests is emphasised by a former President of the Tribunal, Justice Wilson, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318, at [9]-[10]:

The QCAT statutory regime itself places obligations upon parties to take care in dealing with tribunal matters … The legislation and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it acts in its own best interests, or accept the consequences.

  1. [259]
    All the more so, in my opinion, when parties are legally represented.
  2. [260]
    I find that L & V Pools and its solicitors did not act in their own best interests in this case and did deliberately cause Stephen Laffey unnecessary disadvantage in the respects to which I have referred.
  3. [261]
    The consequence in this case is that L & V Pools has a liability to Coastalite applying section 48(2) of the QCAT Act, independently of its liability on the merits of the claim.
  4. [262]
    Interest on the claim of $23,716.00 for the period 7 July 2018 (7 days after issue of the Coastalite invoice to L & V Pools) to date exceeds $1,284.00 but that is the maximum amount I may allow without exceeding the minor civil dispute jurisdictional limit of $25,000 all up on a claim with or without interest.
  5. [263]
    I order as follows:
    1. The Cleaver document is admitted into evidence.
    2. L & V Project Pools Pty Ltd pay Coastalite Pty Ltd $25,000 being $23,716.00 inclusive of GST for claim and interest limited to $1,284.00.
    3. L & V Project Pools Pty Ltd pay Coastalite Pty Ltd the filing fee of $338.20.
    4. Stephen Laffey’s claim for a money order in his favour is dismissed.

Footnotes

[1] T1-29, lines 16 to 21.

[2] Affidavit of Stephen Laffey, sworn 7 November 2018, paragraphs 1, 2.

[3] T1-36 lines 32 to 33.

[4] Leukaemia and a secondary tumour behind one eye.

[5] Affidavit of Stephen Laffey, sworn 7 November 2018, paragraph 12.34.

[6] Ibid paragraphs 12.31, 12.32 and 12.33 and exhibit SNL 4.

[7] Ibid paragraph 12.40.

[8] Ibid paragraph 12.42 an exhibit SNL 5.

[9] T1-62 lines 45 to 47; T1-63 lines 1 to 47; T1-65 lines 1 to 46; T1-65 lines 1 to 47; T1-66 lines 1 to 9.

[10] T1-63, lines 44 to 47.

[11] Affidavit of Stephen Laffey, sworn 7 November 2018, paragraph 12.44.

[12] Of which copies were filed with the Application.

[13] T1-62 lines 7 to 19.

[14] Ibid 1-26, lines 16 to 21.

[15] Tax Invoice 3 of which a copy was filed with the Application.

[16] Emphasis added.

[17] See the basis of the claim which I quoted earlier.

[18] T1-50, lines 10 to 16.

[19] See exhibits R1 and R2 filed by leave at a hearing on 25 October 2018 in this proceeding.

[20] Apparently drawn by solicitors according to the formal language used.

[21] Evidence Act 1977 (Qld), ss. 9 to 9D.

[22] T1-46 lines 35 to 46.

[23] T1-47 lines 1 to 6.

[24] Ibid.

[25] Affidavit of Stephen Laffey sworn 7 November 2018, paragraphs 12.49 to 12.54.

[26] Affidavit of Rachel Cleaver sworn 22 November 2018, paragraphs 6, 7 and 8.

[27] See paragraph 12.7 at page 14 of those submissions.

[28] Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493.

[29] Sinclair v Maryborough Mining Warden (1975) 132 CLR 473.

[30] Queensland Civil and Administrative Tribunal Act 2009, section 12(1), 12(3) and 12(4)(a).

[31] (1968) 392 US 83, 98-100.

[32] (1980) 146 CLR 493, 16 [7].

[33] T1-32 lines 44 to 45; T1-33 lines 3 to 4, lines 11 to 14, lines 31 to 36 and lines 37 to 43.

[34] T1-50, lines 38 to 39.

[35] Ibid T1-33, lines 24 to 29.

[36] T1-19, lines 9 to 31.

[37] T1-48, lines 28 to 29.

[38] T1-54, lines 28 to 39.

[39] T1-55, lines 1 to 5.

[40] T1-56, lines 26 to 38.

[41] T1-57, lines 16 to 38.

[42] Declared on 3 January 2009, tendered and marked exhibit A1 at the hearing on 22 January 2019.

[43] T1-20 lines 36 to 47; T1-21, line 1.

[44] Affidavit of Jan Mazar sworn 22 November 2018, paragraph 18.

[45] Affidavit sworn 22 November 2018, paragraph 18.

[46] Ibid paragraph 20.

[47] Ibid paragraph 21.

[48] Ibid paragraph 24.

[49] Affidavit of Michaela Laffey sworn 22 November 2018, paragraphs 1, 4, 6 and 7.

[50] See paragraphs 13.1 and 13.2 of the Submissions.

[51] Affidavit of Rachel Cleaver sworn 22 November 2018, paragraph 3.

[52] Ibid paragraph 7.

[53] Ibid paragraph 8.

[54] Ibid paragraph 9.

[55] Ibid paragraph 10.

[56] Ibid paragraph 11.

[57] Ibid paragraph 12.

[58] Ibid paragraph 13.

[59] [1996] All ER 698.

[60] [1970] 1 WLR 1211, 1213.

[61] (2002) CLR 95, 105.

[62] [1969] 2 All ER 616, 621.

[63] AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95, [4].

[64] T1-61, lines 42 to 44.

[65] T1-61, lines 25 to 26.

[66] Bunning v Cross [1978] HCA 22; Mesic v Kasovic [2016] QCATA 37, [17]; Halsbury’s Laws of Australia, paragraphs [195]-[225].

[67] Owen v Menzies [2012] QCA 170.

[68] [2013] QCATA 42

[69] Ibid [8], citing Chappell Co Ltd v Nestle Co Ltd [1960] AC 87.

[70] [2012] QCAT 686.

[71] Currie v Misa (1875) LR 10 Ex 162.

[72] Ibid [24].

[73] T1-68, lines 5 to 12.

[74] University of Wollongong v Metwally (No. 2) [1985] HCA 28, 71, cited with approval in Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173, [6].

[75] Queensland Civil and Administrative Tribunal Act 2009, ss 48(1)(b), (d), (e) and (f).

[76] Ibid section 48(2)(b)(i).

[77] See Part F at page 3 of the Respondent’s application for leave to be represented filed on
11 September 2018.

[78] [2019] QCATA 100, [19].

Close

Editorial Notes

  • Published Case Name:

    Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd

  • Shortened Case Name:

    Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd

  • MNC:

    [2019] QCAT 238

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    31 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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