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McNaughton v Marsh Tincknell Pty Ltd QCATA 118
McNaughton v Marsh Tincknell Pty Ltd  QCATA 118
Marsh Tincknell Pty Ltd
On the papers
Senior Member Stilgoe OAM
26 July 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where general letter of engagement of accountant – where letter of engagement covered ‘business entities’ for which instruction given – where letter of engagement made contracting party personally liable – where invoices rendered for work on behalf of companies – where invoices rendered to contracting party personally – where tribunal held contracting party personally liable – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
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
- Marsh Tincknell Pty Ltd is a firm of chartered accountants. On 14 August 2006, Stephen and Jennifer McNaughton signed a professional services engagement letter ‘to attend to the accounting and taxation requirements for your business entities and your family’.
- Marsh Tincknell issued invoices. They were not paid. It filed a claim for $11,211.45 for outstanding fees. Part of that claim consisted of fees due to a lender. The tribunal ordered Mr McNaughton pay Marsh Tincknell $9,911.80.
- Mr McNaughton 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.
- Mr McNaughton says the tribunal erred in fact in finding that he contractually bound himself for paying the accounts of two companies, Deesign and Design Pty Ltd and Nova Pty Ltd. He says the tribunal erred in law in finding that he was responsible for the debts of those two companies.
- Mr McNaughton says that, when he signed the engagement letter, he had no intention of establishing a new business. He says that Deesign and Design Pty Ltd was not incorporated until May 2010. He says Marsh Tincknell did not review the letter of engagement or offer a new letter of engagement. He says that he issued the majority of instructions for Deesign and Design Pty Ltd in his capacity as director of the company, not for himself personally. He says that he requested invoices in the company name, which requests were ignored.
- The tribunal examined the engagement letter in detail. It took note of this paragraph:
If you do not forward your signed copy of the engagement letter or contact us with changes to the engagement yet continue to provide us with information and instructions regarding your financial affairs, the terms and information provided in this letter will bind us both.
- The tribunal also noted this paragraph of the engagement letter:
This engagement letter sets out the conditions of engagement between ourselves and yourself personally. Some of your affairs may relate to a business that is operated by one or more other entity; however the issuing of fees and the carrying out of the work is undertaken on your behalf personally. It is appropriate for accounts to be paid by an associated business entity, however responsibility for unpaid accounts will be addressed to yourself personally.
- The tribunal accepted the view of Marsh Tincknell’s Mr Corless, that the letter covered the situation where accountants often have extended relationships with clients covering many years and different entities. I agree with that view of the engagement letter. Mr McNaughton has not made any submissions that would persuade me to a contrary view.
- The tribunal also considered Mr McNaughton’s submission that Deesign and Design Pty Ltd invoices were paid by the company, not Mr McNaughton personally. The tribunal found that the invoices were rendered to Mr McNaughton personally and, at no time, did Marsh Tincknell resile from the position in its letter of engagement; that Mr McNaughton would always be personally liable for the invoices. Again, Mr McNaughton has not made any submissions that would persuade me to a contrary view. Again, I agree with the tribunal’s conclusions.
- The tribunal did not err in fact. The tribunal did not err in law. 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 .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript 18 December 2915, page 1-3, line 40 to page 1-4, line 4.
 Transcript page 1-4, lines 26-32.
- Published Case Name:
Stephen McNaughton v Marsh Tincknell Pty Ltd
- Shortened Case Name:
McNaughton v Marsh Tincknell Pty Ltd
 QCATA 118
Senior Member Stilgoe
26 Jul 2016