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Karaday Pty Ltd v RSB Australia Pty Ltd QCATA 84
Karaday Pty Ltd v RSB Australia Pty Ltd  QCATA 84
Karaday Pty Ltd
RSB Australia Pty Ltd
7 April 2015
Senior Member Stilgoe OAM
22 June 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER/TRADER CLAIM – where deposit for importation of Ferrari – where alleged breach of contract – where claim for return of deposit – where claim filed as consumer/trader claim – where applicant a company – whether trader/trader claim – definition of “trader” – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – PROCEDURE – where application for adjournment refused – where application for remote conferencing – where notice of appointment of agent for remote conferencing – where tribunal did not contact agent – whether procedural fairness – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 12(4), 43(4), 43(5), Schedule 3
Pickering v McArthur  QCA 294
Rosa v Tait Management Services Pty Ltd  QCATA 214
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
- RSB Australia Pty Ltd wanted to import a Ferrari into Australia. It contacted Karaday Pty Ltd through its website, asking for a cost to arrange Australian compliance. Karaday provided an estimate of $20,000. RSB paid a deposit of $10,000.
- RSB chose the car, through Karaday, and it was loaded ready for shipment. Karaday then advised the compliance cost was $25,000 and advised of other, additional charges. RSB decided not to get Karaday to provide compliance for the car. It asked for a return of its deposit. Karaday refused to return the deposit so RSB filed a claim in the tribunal. An Adjudicator ordered Karaday refund RSB’s deposit and pay $1060 interest plus RSB’s filing fee of $294.60
- Karaday 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.
- Karaday says that its requests for an adjournment and remote conferencing were unreasonably ignored. It says RSB misrepresented the facts to the tribunal. It says the tribunal miscalculated the amount of the order. It says there was a perception of bias. It says the decision was inequitable and unjust.
- The first ground of Karaday’s application for leave to appeal is in the nature of an application for reopening. Karaday has already applied for, and been refused, an application for reopening and there is no appeal from a refusal to grant a reopening. However, Karaday’s submissions raise the issue of procedural fairness and it is necessary to consider those submissions.
- The tribunal listed the hearing of the dispute for 19 November 2014. On 22 October 2014, Karaday filed an application to strike out the claim for want of jurisdiction. On 5 November 2014, the tribunal dismissed that application. It seems from the correspondence that Karaday was so confident its application would be successful, it did nothing about the substance of the claim.
- On 13 November 2014, Karaday posted an application for an adjournment to the tribunal. At the same time, Karaday sent an email to the tribunal, but the email did not attach the application. The tribunal received the application on 17 November 2014, two days before the hearing. Glyn Pearce, for Karaday, rang the tribunal on 18 November 2014. He was told that the tribunal had not yet considered his application for an adjournment, that it might not be processed before the hearing, but the tribunal would consider it at the hearing.
- Karaday sought an adjournment because Mr Pearce was attending a Christmas lunch function. The tribunal refused the application for adjournment.
- In its submission on appeal, Karaday relied on its experience in the Victorian Civil and Administrative Tribunal (VCAT) that the hearing would simply be a directions hearing. Nothing published by the tribunal justified that assumption. The tribunal sent a notice advising that:
“… the hearing of this claim will take place … at …
This matter will be heard by the tribunal at the place, date and time stated in this notice. …If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.”
- There was no lack of procedural fairness in the tribunal’s refusal of the adjournment.
- A company does not need leave to appear by a natural person if it has supplied a certificate of authority to satisfy s 43(5) of the QCAT Act. That section states that a party who is not an Australian legal practitioner who is seeking to represent a corporation, must give the tribunal a certificate of authority from the corporation. The learned Adjudicator did not consider this aspect of s 43. In my view, the letter from Mr Pearce was a sufficient certificate of authority. It was on Karaday letterhead and signed by its director, Mr Pearce. Therefore, the tribunal should have heard from Mr McPherson. The tribunal’s failure to hear from Mr McPherson is a failure to provide procedural fairness. It is not a reiteration of a reopening ground, but a separate ground of appeal. Leave to appeal should be granted and the appeal allowed.
- Because the tribunal’s error was one of law, and because the error affected the proceedings as a whole, the appropriate order should be to allow the appeal and set aside the decision and remit the proceeding to the tribunal for rehearing.
- There is no point in remitting the dispute for hearing if the tribunal lacks jurisdiction. I heard the parties on 7 April 2015 on a point of jurisdiction that was not raised in the tribunal below.
- At the hearing, I asked Mr Petovski, for RSB, whether the company was a trader. He said that the company did not trade and was used to hold assets. When I explained the potential consequences of that admission, Mr Petovski changed his mind and told me that the company did trade. I made directions for the parties to file and serve material about whether RSB was a trader.
- RSB filed copies of bank statements that show deposits from third parties for undisclosed amounts and regular debits for “business-like” expenses. The deposits are unexplained. There is no information linking them to a trade in goods or services. The fact of expenses does not necessarily mean that a company is a trader.
- RSB submitted that it owns trucks which it leases to a company called EB Transport. It provided three invoices, for January, February and March 2013, showing a charge to EB Transport for “cartage”. The invoices are some evidence of RSB being a trader. On their own, however, the invoices do not establish to my satisfaction that RSB carries on the business of supplying services, particularly in light of the fact that the claim was originally framed as a consumer/trader claim and Mr Petovski’s initial assertions to the appeals tribunal that RSB was not a trader. As I noted during the hearing, better evidence might have been tax returns showing a trading account, or agreements for the supply of services. In the absence of better evidence, I prefer to accept Mr Petovski’s initial position that RSB was not a trader. I am, therefore, not satisfied that the tribunal had jurisdiction to hear the claim.
- Karaday makes the interesting argument that the contract on which the claim is based should be a contract in the course of the trader’s business. This is an attractive interpretation of s 12(4)(c) but I am not necessarily persuaded that the plain meaning of the section can support such a narrow interpretation. Although it is not necessary to decide, I note that the appeals tribunal considered a similar issue in Rosa v Tait Management Services Pty Ltd. The appeals tribunal accepted that the parties were in the business of supplying accommodation services but held that the contract – the sale of a business – was a one-off transaction and, therefore, not a contract made between traders.
- RSB is not without the opportunity for a remedy. The appropriate course is to file a claim in a venue that has general jurisdiction for civil claims.
- Leave to appeal is granted and the appeal allowed. The decision of 19 November 2014 is set aside. The claim filed 10 August 2014 is dismissed.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 QCAT Act s 139(5).
 Transcript page 1-7, lines 26 -30.
 As required by s 43(4) of the QCAT Act.
 QCAT Act s 12(4)(b).
 QCAT Act Schedule 3.
 QCAT Act s 12(4)(c).
 QCAT Act Schedule 3.
 Hearing 7 April 2015 at 11:40:17.
  QCATA 214.
- Published Case Name:
Karaday Pty Ltd v RSB Australia Pty Ltd
- Shortened Case Name:
Karaday Pty Ltd v RSB Australia Pty Ltd
 QCATA 84
Senior Member Stilgoe
22 Jun 2015