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Scholtz v Sturgeon[2016] QCATA 113

CITATION:

Scholtz v Sturgeon [2016] QCATA 113

PARTIES:

JOHANNA SCHOLTZ

(Applicant/Appellant)

v

EMMA STURGEON

(Respondent)

APPLICATION NUMBER:

APL533-15

MATTER TYPE:

Application and Appeals

HEARING DATE:

12 July 2016

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

15 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision in MCDO 6-15 is set aside.
  4. The matter is returned to the tribunal for reconsideration of the issue of Johanna Scholtz’s legal liability to pay the claimed amount to the applicant.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR DEBT – where the applicant was an employee of a company – where the tribunal did not consider whether she should be personally liable for a debt – where the applicant claims she was not notified of the tribunal hearing – whether the matter should be remitted to the tribunal for reconsideration.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 138(5), (6), 139(4).

APPEARANCES and REPRESENTATION:

APPLICANT

Self-represented.

RESPONDENT

Self-represented.

REASONS FOR DECISION

  1. [1]
    A tribunal in Sarina ordered the applicant, Mrs Scholtz, to refund a deposit to the respondent (a bride-to-be who terminated her wedding booking) in default of appearance.
  2. [2]
    The thrust of the applicant’s submissions on appeal are twofold:
  1. she should not be personally liable for the repayment of the debt as she was only dealing with the respondent’s booking as a casual employee of the (now impecunious) wedding company controlled by her husband; and
  2. she was not aware of the QCAT hearing as she was living in Perth.

Mrs Scholtz’s personal liability

  1. [3]
    The minor debt claim was made against “Johanna Scholtz t/as Hospitality Galore Pty Ltd”, but there is no evidence pointing to Mrs Scholtz being personally liable for the company’s debts. Neither party’s submissions clearly explain the applicant’s exact role in the wedding company. The respondent does not address this argument in her submissions at all.
  2. [4]
    In a series of emails, Mrs Scholtz (through her husband) apologised for “the unfortunate embarrassing situation”, promised to “repay, if not all at least a reasonable amount, as soon as we are able to do so” and told the application about their “severe financial hardship due to the fact we tried to save the company”. The tribunal was satisfied by these statements that Mrs Scholtz and her husband understood “they (had) contractual obligations and that they’re required to repay the (deposit) and that they’re in difficult times”, and that it had “sufficient evidence” to make the order.
  3. [5]
    Notably, however, the applicant was ordered to reimburse the respondent $9 for an ASIC company extract which clearly showed that Hospitality Galore Pty Ltd was not merely a business name Mrs Scholtz used, but a proprietary company limited by shares with effective registration to 7 November 2015. It did not record the applicant as having any stake or role in managing the company.

The notice issue

  1. [6]
    English is the applicant’s second language. She says she did not understand tribunal procedures and thought the mediation brought the dispute to an end. She also claims to have not been made aware of the hearing date. Although normally be a reopening ground, a party cannot apply to reopen a decision under s 139(4) QCAT Act if an appeal tribunal proceeding is pending.[1]
  2. [7]
    The transcript does not indicate whether service was proved before default judgment was given, but the notice of hearing is on the QCAT file informing Mrs Scholtz that the claim against her was to be heard at the Sarina Courthouse from 8.30am on Monday 23 November 2015, along with a “read receipt” confirming receipt at [email protected] on 19 September 2015.

Conclusion

  1. [8]
    The applicant was probably notified of – but for some reason did not attend – the hearing. Ordinarily, parties who deliberately fail to appear are taken to choose their own adverse consequences. In this instance, however, the fact it went ahead without Mrs Scholtz seems to have resulted in an error of law because the payment order was made on the highly doubtful basis that she was a party to the contract and was personally liable for the company’s breach of it.
  2. [9]
    Accordingly, the decision in MCDO 6-15 must be set aside in the interests of justice and the matter returned to the tribunal for reconsideration of the issue of Mrs Scholtz’s legal liability to pay the claimed amount to the applicant.

Footnotes

[1]QCAT Act ss 138(5), (6).

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Editorial Notes

  • Published Case Name:

    Johanna Scholtz v Emma Sturgeon

  • Shortened Case Name:

    Scholtz v Sturgeon

  • MNC:

    [2016] QCATA 113

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    15 Jul 2016

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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