Turner v PVB Plumbing Solutions
[2015] QCAT 194
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- Unreported Judgment
- Turner v PVB Plumbing Solutions[2015] QCAT 194
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Turner v PVB Plumbing Solutions[2015] QCAT 194
Turner v PVB Plumbing Solutions[2015] QCAT 194
CITATION: | Turner v PVB Plumbing Solutions [2015] QCAT 194 |
PARTIES: | Daniel Turner (Applicant) |
v | |
PVB Plumbing Solutions (Respondent) | |
APPLICATION NUMBER: | MCDO35-15 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 1 May 2015 |
HEARD AT: | Pine Rivers |
DECISION OF: | Member Favell |
DELIVERED ON: | 25 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Application to strike out or dismiss the application refused. |
CATCHWORDS: | Minor civil dispute - application to strike out or dismiss an application – where application made against a business name – where consortium operating under business name wound up – where new corporation operating under the business name. |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Daniel Turner |
RESPONDENT: | Gary Armstrong |
REASONS FOR DECISION
- [1]The applicant makes a claim for $10,329.00 as a refund of money paid by him to the respondent on 3 December 2012 said to be for delivery of a Biolytix BF63000LPAV filter system and fittings.
- [2]That amount was invoiced by invoice number 4989 on PBV Plumbing Solutions letterhead with the notation PVB Pty Ltd ATFV EBVG Trust ABN 884 630 23 901. The invoice required payment to be made to PVB Pty Ltd.
- [3]In the application the applicant said that he paid the $10,329.00 because he was told that he would need to pay so that the system could be ordered from New Zealand. He was told the system would take until April/May to arrive. In June 2013 he contacted PVB Plumbing Solutions and was told that because he didn’t call the system was sold and he would have to wait for another.
- [4]In October 2013 he was told the system was no longer available and if he accepted a different system it would be no extra cost. He says that the system was never installed and because he has not received it he now wants his money back.
- [5]An application for miscellaneous matters was filed on 30 April 2015. It applied to “dismiss/strike out the application.” The grounds of the application was said to be “PVB Plumbing Solutions is the trading name of EVBG Pty Ltd as trustee for the EVBG#2 Trust.
- [6]Mr Armstrong who appeared by phone on the application told me that PVB Pty Ltd was wound up and a new company EBVG Pty Ltd owned the trading name PVB Plumbing Solutions.
- [7]He seeks to argue that because the new company now has the trading name which is named as the respondent in this application and because that company did not exist at the time the payment was taken the matter should be struck out.
- [8]The application for attendance at this hearing was made by EBVG Pty Ltd although it at that time was not a party to the application. I note from the correspondence which accompanied the application for miscellaneous matters that the address of the new company EBVG Pty Ltd is that same address which was given on the tax invoice 4989.
- [9]A Queensland Building and Construction Commission (QBCC) license search for PVB Pty Ltd shows that the company is not currently licensed and all classes of licence are cancelled. The search discloses the statement “Gary John Armstrong is an excluded individual and must not be a director, secretary or influential person for PBV Pty Ltd. This means Gary John Armstrong cannot control or substantially influence the conduct of the company’s affairs and cannot be a shareholder with a significant shareholding, financier or senior employee of PBV Pty Ltd.”
- [10]The company PBV Pty Ltd is an excluded company. The reason that it is an excluded company is that a liquidator was appointed on 29 April 2013.
- [11]A licence search for EBVG Pty Ltd does not disclose a licence for that entity.
- [12]A business names search shows the business name PVB Plumbing Solutions was registered on 25 May 2013 to the trustee for EBVG#2 Trust ABN 428 715 970 79 with its principal place of business at 1/81 Buderim Avenue, Mooloolaba, Queensland 4557.
- [13]A business name search discloses that EBVG Pty Ltd ACN 163 478 000 was registered on the 26 April 2013.
- [14]Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies if the tribunal considers a proceeding or part of a proceeding frivolous, vexatious, or misconceived or lacking in substance or otherwise an abuse of process. If that is so the tribunal may, if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding order the proceeding or part be dismissed or struck out. That is the case here.
- [15]Division 3 of part 3 of the Queensland Civil and Administrative Tribunal Rules 2009 deals with starting a proceeding against a business. Section 14 provides that if proceeding is brought against an entity in relation to a business carried on by the entity under a name that is registered on the business names register the proceeding maybe started against the business name registered on the business name register.
- [16]In support of his application to strike out the application made by Mr Turner Mr Armstrong referred to Stanley Stergiou and Ekaterine Stergiou v City Bank Savings Ltd.[1]
- [17]That decision was concerned with, in part, numerous proceedings maintained on behalf of a deregistered company. Once that was known it was contended that all proceedings for or against the de-registered company were a nullity.[2] Although Mr Armstrong did not articulate any particular part of the judgement what he was relying on, presumably, is that proposition which he put forward to seek to have the proceeding terminated.[3]
- [18]All of the decisions referred to herein which were concerned with situations where it was recognised that commencing proceedings against an entity which was deregistered was a nullity. Here the proceedings were commenced on 4 March 2015 against a registered business name which still enjoys that status albeit it is now conducted by a different corporate entity.
- [19]A search of the ASIC register for PVB Pty Ltd ACN 145 749 060 discloses that it was deregistered on the 3 November 2013 before various occasions when PVB Plumbing Solutions was still engaging in correspondence with Mr Turner about the installation of the filter system.
- [20]At the time PVB Plumbing Solutions as a business name was corresponding with Mr Turner in August 2014 it was the registered business name of EBVG Pty Ltd.
- [21]This is not a case where the application has been commenced against a nonentity. It has been commenced against a business name and at the time it was commenced the business name was owned by EBVG Pty Ltd an existing corporation.
- [22]The question which arises here is whether the obligation incurred in the name of PVB Plumbing Solutions in 2012 in that name continued into the new entity now conducting business under that registered business name. Arguably by continuing the negotiations with Mr Turner in August 2014 the new entity operating under the old business name took over the obligations of the old entity under the same business name.
- [23]Arguably the continued use of the same business name by the new entity may be a representation that it assumes the responsibility incurred under the business name even before the new entity came into existence.
- [24]Apart from the change of the entity trading under this business name I am not told of any arrangements that were made to allow it to take over the business name.
- [25]I am not persuaded in the circumstances which pertain to this application and the application to strike out that the change of the entity trading under this business name necessarily means that the application is a nullity, an abuse of process or without any prospect of success.
- [26]In those circumstances I am not prepared to strike out or dismiss the application.
Footnotes
[1] [2005] ACTCA 15.
[2] International Bulk Shipping and Service Ltd v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017.
[3]Kingston Futures Pty Ltd v Waterhouse [2013] 1 Qd R 507, Paul David Lomas v Veescorp Pty Ltd [2011] QCATA 290, Lomiss v Thess Corp Pty Ltd [2011] QCAT 141 and Apostolou (as trustee of the Vasiliou Family Trust) v Marchesi [2009] FCR 66.