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Wong v Ong QCATA 51
Wong v Ong  QCATA 51
Evelyn Loan Ong
On the papers
Senior Member Stilgoe OAM
21 April 2015
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  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. 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.
- 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 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.
- There is no evidence that the ASIC invoice has been paid. In fact, it appears that the invoice has not been paid because Mr Wong states that the late fees cannot be changed ‘whether or not they have been paid’.
- Ms Ong submitted that ASIC might now waive the fee, because Mr Nguyen has asked for the initial transfer to be set aside. If ASIC does set aside the transfer, and waive the fee, there is no liability attaching to AC Designs or Mr Wong.
- Mr Wong filed an application for minor debt. It was a minor debt if Mr Wong was seeking to recover a debt or liquidated demand but he was actually seeking damages for negligence. The fact that the amount of the claim was quantifiable does not change the character from damages to a debt due. The tribunal had no jurisdiction to hear the claim as a minor debt.
- The tribunal has jurisdiction to hear claims arising out of a contract between a consumer and a trader or a contract between traders. Mr Wong’s claim does not arise out of a contract between him, or AC Design, and Ms Ong. Therefore, the tribunal has no jurisdiction to consider the claim as a consumer/trader claim or a trader/trader claim. Even if there was a contract, which there is not, the tribunal would still not have jurisdiction. The term “trader” does not include those who exercise disciplines not ordinarily regarded as within the field of trade and commerce. Ms Ong is a legal practitioner. That is a profession that falls within the exception to the definition of “trader”.
The “new” argument
- Mr Nguyen was added as a respondent to the claim. He filed a response claiming that conditions precedent to the share transfer had not been fulfilled, that he had asked ASIC to revoke the original transfer and, therefore, it was probable that no late fees would apply. He also gave notice that he intended to claim damages for misleading and deceptive conduct. Ms Ong echoed those allegations in material filed the day before the hearing.
- The tribunal spent some time considering whether the condition precedent had been fulfilled. It did not decide the issue but found that it was a factor that pointed to Mr Wong not having sufficient evidence to satisfy the tribunal.
- Because of my reasons above, I do not need to decide the issue either. However, the transcript shows that Mr Wong had no understanding of the argument put to him. The tribunal has a positive obligation to ensure parties before the tribunal understand the nature of assertions made in a proceeding and the legal implications of the assertions. I am not persuaded that the tribunal properly discharged that obligation in this proceeding.
- If the tribunal did have jurisdiction to hear Mr Wong’s claim, the late, and new, argument may have been a basis to adjourn the hearing. The failure to adjourn the hearing may have been grounds for leave to appeal. However, Mr Wong fails at the first hurdle. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Application for leave to be represented filed 30 September 2014.
 Letter Kong Wong “to whom it may concern” 8 October 2014.
 QCAT Act s 12(4)(b).
 QCAT Act s 12(4)(c).
 QCAT Act Schedule 3.
 Transcript page 1-11, line 37 to page 1-13, line 45.
 QCAT Act s 29.
- Published Case Name:
Kong Wong v Evelyn Loan Ong
- Shortened Case Name:
Wong v Ong
 QCATA 51
Senior Member Stilgoe
21 Apr 2015