Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Thistleton v GNG Electrical Pty Ltd[2015] QCATA 171

Thistleton v GNG Electrical Pty Ltd[2015] QCATA 171

CITATION:

Thistleton v GNG Electrical Pty Ltd [2015] QCATA 171

PARTIES:

Ryan Thistleton

(Applicant/Appellant)

v

GNG Electrical Pty Ltd

(Respondent)

APPLICATION NUMBER:

APL311 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

1 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 7 July 2015 should be set aside.
  4. GNG Electrical Pty Ltd shall pay Ryan Thistleton $5,000 within 21 days of order.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where contract with partnership – where one partner in liquidation – where order against partner in liquidation – where order that each partner pay half of order – whether grounds for leave to appeal

Corporations Act 2001 (Cth) s 471B

Partnership Act 1891 (Qld) s 12(1)

Fox v Percy (2003) 214 CLR 118

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

  1. [1]
    Ryan Thistleton did some electrical work for Greg Rogers. He issued invoices to GT Group International but he was not paid. He filed a minor debt claim against GT Group International Pty Ltd and GNG Electrical Pty Ltd. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the Tribunal, ordered:

The Respondents must pay to the Applicant a total of $5000.00 within thirty days from today. That is Respondent One is to pay $2,500.00 and Respondent 2 is to pay $2,500.00 to the Applicant.

  1. [2]
    Mr Thistleton 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]
  2. [3]
    Mr Thistleton says the tribunal erred in making orders against GT Group International Pty Ltd, because that company was in liquidation, and he did not have the leave of the Supreme Court to proceed against the company. He says the tribunal erred in making an order that each of the respondents pay half of the order, because the respondents were in a partnership and therefore each partner was jointly and severally liable for the total debt pursuant to s 12(1) of the Partnership Act 1891 (Qld).

GT Group International Pty Ltd was in liquidation

  1. [4]
    I would not have been surprised if the tribunal had overlooked the fact that GT Group International Pty Ltd was in liquidation. The ASIC search filed with Mr Thistleton’s claim showed the company as trading. Unfortunately, the search was dated 13 November 2013. The licensed commercial agent that filed the claim on behalf of Mr Thistleton should take more care to ensure information filed in the tribunal is current.
  2. [5]
    However, it did come to the tribunal’s attention that GT Group International Pty Ltd was in liquidation[3].
  3. [6]
    Mr Thistleton correctly identifies that a person cannot bring proceedings against a company in liquidation without the leave of the Court[4]. It is a pity Mr Thistleton didn’t raise that issue during the hearing but the tribunal has an obligation to apply the law correctly, even if the parties do not know, or present, the legal principles.
  4. [7]
    Leave to appeal should be granted and the appeal allowed.

Liability of partnerships

  1. [8]
    The tribunal found that GT Group International Pty Ltd and GNG Electrical Pty Ltd were in a partnership when Mr Thistleton was engaged to do the work the subject of the claim. While I don’t necessarily agree with this finding, it is not the subject of the application for leave to appeal.
  2. [9]
    Mr Thistleton says that the effect of s 12(1) of the Partnership Act (Qld) is that each partner is jointly and severally liable for debts incurred by the partnership. Once again, Mr Thistleton is correct. Once again, it is a pity that Mr Thistleton did make this submission at the hearing. Once again, however, the tribunal should have applied the law correctly.
  3. [10]
    Leave to appeal should be granted and the appeal allowed. The decision of 7 July 2015 should be set aside.
  4. [11]
    As the tribunal found the partnership liable for the debt, and GNG Electrical Pty Ltd is a member of the partnership, the tribunal should have ordered that it be liable for the whole debt. As the tribunal could not hear the claim against GT Group International Pty Ltd without the leave of the court, there should be no order against that company. The order of the tribunal should be that GNG Electrical Pty Ltd shall pay Ryan Thistleton $5,000 within 21 days.

Footnotes

[1]   QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3]  Transcript page 1-31, lines 21 – 22; page 1-33, lines 31 – 35.

[4] Corporations Act 2001 (Cth) s 471B.

Close

Editorial Notes

  • Published Case Name:

    Thistleton v GNG Electrical Pty Ltd

  • Shortened Case Name:

    Thistleton v GNG Electrical Pty Ltd

  • MNC:

    [2015] QCATA 171

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    01 Dec 2015

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.