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EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions v Turner QCATA 38
EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions v Turner  QCATA 38
EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions
Daniel Mathew Turner
On the papers
Senior Member Stilgoe OAM
3 May 2016.
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER PROTECTION – MISLEADING AND DECEPTIVE CONDUCT OR FALSE PREPRESENTATIONS – where contract with company to supply and install biocycle system – where price paid for supply of system – where installation deferred – where company went into liquidation – where director of company in liquidation continued to deal with consumer – whether misleading and deceptive conduct – whether loss or damage from misleading and deceptive conduct – whether contract novated from company in liquidation to new company operated by director – whether grounds for leave to appeal
Salomon v Salomon & Co Ltd  AC 22
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd  AC 847
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
Winn v GP Realty  QCATA 047
Kellogg v Board of Trustees The Ipswich Girls’ Grammar School  QCATA 210
Body Corporate for Rosegum Villas v Queensland Building and Construction Commission  QCATA 125
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
- In November 2012, Daniel Turner paid PBV Plumbing Solutions $10,329 for a biofiltration system. Installation of the system was an extra $5650.
- There were problems in delivery of the system. Time passed. On 4 December 2014, PBV Plumbing Solutions sent Mr Turner a revised quote for installation. However, PBV Plumbing Solutions also called for payment for the system itself.
- Mr Turner filed an application for a consumer dispute, requesting return of $10,329. The entity trading as PBV Plumbing Solutions in 2012 (ABN 88 463 023 901) was not EBVG, the entity that traded as PBV Plumbing Solutions in 2014. Despite that, the Tribunal found that EBVG was liable to refund money Mr Turner paid to the first entity.
- EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions (ABN 42 871 597 079) 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.
- EBVG says that the Tribunal did not give sufficient reasons for its decision. It says the evidence cannot support the Tribunal’s findings. It submits the Tribunal erred in law and fact in finding that the second entity assumed responsibility for the obligations of the first entity.
Did the Tribunal give sufficient reasons for its decision?
- EBVG referred the Tribunal to the Appeal Tribunal’s remarks in Body Corporate for Rosegum Villas v Queensland Building and Construction Commission:
… the tribunal must give adequate reasons for its decision. What is “adequate” for a tribunal is informed by the nature of the dispute. A tribunal is not required to mimic the way a court gives its reasons, but it must set out the material findings of fact, the applicable law and the reasons for applying the law in the way expressed in the decision.
- The Appeals Tribunal has long recognised that the obligation to give reasons in the minor civil disputes jurisdiction is slightly different:
In QCAT’s Minor Civil Disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the Queensland Civil and Administrative Tribunal Act 2009. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the Adjudicator’s caseload. That proposition is not exclusive to the Minor Civil Disputes jurisdiction or the work of Adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at 578: ‘It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload’.
- The Tribunal’s decision in this case descends to some detail. The Tribunal recites the history of dealings between the parties. On the basis of those facts, which EBVG does not dispute, the Tribunal found that EBVG accepted the obligations of the previous entity.
- EBVG says that the Tribunal did not refer to the precedents it cited, nor to the propositions of law.
- EBVG referred to Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd as authority for the proposition that only parties who entered into a contract are legally bound by the terms of the contract. That proposition is unexceptional. EBVG also referred to Salomon v Salomon & Co Ltd as authority for the proposition that a company is a separate legal entity distinct from its members. That, too, is an unexceptional proposition. The Tribunal’s failure to refer to either of these cases does not, in itself, lead me to conclude that the Tribunal’s reasons are deficient.
Did the Tribunal err in law?
- The question for the Tribunal was whether EBVG assumed responsibility for the obligations of the previous company, now in liquidation. The Tribunal found:
… the tribunal has come to the view that, in this case, it is arguable and reasonable for the tribunal to find justice between the parties in relation to this matter that by continuing the negotiations with Mr Turner after 20th May 2013, the new entity operating under the old business name took over the obligations of the old entity under the same business name and, further, that the continued use of the business name by the new entity may well have been a representation that it assumed the responsibility incurred under the business name evener before the new entity came into existence.
- The Tribunal’s decision might have been a just, or moral result, but the Tribunal is obliged to apply the relevant law when coming to a decision.
- EBVG says it set out the relevant principles in its submissions before the Tribunal below, which the Tribunal ignored. It says that the contract could not have been novated. It submitted that the burden of a contract cannot be assigned unless as a condition of enjoying the rights under the contract. EBVG also submitted that a novation required the agreement of all parties that the original contract was discharged.
- There is no evidence that EBVG received the benefit of the contract with the first entity. It could not have received the money Mr Turner paid for the system because the company went into liquidation and the liquidator would have retained any money or equipment. There is no evidence that all parties - that is, EBVG, Mr Turner and the liquidators of the previous company – agreed that the original contract was discharged. EBVG is correct in its submission that the contract was not novated.
- EBVG also submits the Tribunal erred in finding that it can be responsible for representations made before it came into existence. It points out that a business name is not a legal entity so there is no capacity for a business name to enter into a contract or make representations. I agree. The Tribunal erred in finding that EBVG could make representations before it existed. Of course, Mr Armstrong, the alter ego of both the previous company and EBVG, could make representations, but that was not argued before the Tribunal below.
- EBVG also notes that past consideration (Mr Turner’s payment to the previous company) is not consideration for a contract between EBVG and Mr Turner. Again, I agree.
Did the Tribunal err in fact?
- EBVG says that the Tribunal erred in finding that its quotation amounted to a representation that it was assuming responsibility for the previous company’s liability. It says that its quote showed a different trust name, different ABN, different description of the work and different quote for the work.
- The fact that EBVG’s quote showed different work and a different price does not, of itself, mean that it could not be a representation that EBVG was assuming the obligations of the previous company. Time had passed since Mr Turner first bought a system; it was, therefore, foreseeable that some aspects of the job might change.
- I am not necessarily persuaded that EBVG’s notation of a new trust and a new ABN means that the quote was not misleading. PBV Plumbing Solutions appears in the same typeface on both documents. PBV Plumbing Solutions is in very large typeface; the registered owner of the business name, the trust and the ABN, although visible, are in very small type. Mr Turner continued to deal with Mr Armstrong, the mailing address and telephone number stayed the same, the signature block was the same and there is no evidence that Mr Armstrong bothered to tell Mr Turner that he was now agent for a different company. The evidence can support a finding that the quote from EBVG was misleading.
- That finding, though, is not enough to justify the Tribunal’s decision to make EBVG liable to repay Mr Turner. Mr Turner had to establish loss or damage as a result of the misrepresentation. He could not do that. The $10,329 Mr Turner paid to the previous company was lost as soon as that company went into liquidation. He did not suffer that loss because of anything that EBVG did. The Tribunal was, therefore in error, although it was an error of law, not of fact.
- I understand that Mr Turner feels that he has been misled by Mr Armstrong. That is probably right but the Tribunal must only give compensation where there is a legal basis to do so and the claim is within the Tribunal’s jurisdiction. Mr Turner may be able to pursue other remedies and, to this end, I direct that a copy of this decision be forwarded to the Queensland Building and Construction Commission and the Australian Securities and Investment Commission for further investigation.
- Leave to appeal should be granted and the appeal allowed. The decision of 28 October 20155 is set aside and the claim filed 4 March 2015 is dismissed. If EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions has paid Daniel Mathew Turner any amount pursuant to the order of 28 October 2015, Daniel Mathew Turner shall refund that amount to EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions by 24 May 2016.
 QCAT Act s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
  QCATA 125 at .
Winn v GP Realty  QCATA 047 at .
  AC 847.
  AC 22.
 Transcript of Proceedings, EBVG Pty Ltd at EBVG # 2 Trust t/as PBV Plumbing Solutions v Daniel Matthew Turner (Queensland Civil and Administrative Tribunal, Mr Alexander Crawford, 28 October 2015 (‘Transcript’), page 1 to14, at 40.
 Kellogg v Board of Trustees The Ipswich Girls’ Grammar School  QCATA 210 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.
- Published Case Name:
EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions v Turner
- Shortened Case Name:
EBVG Pty Ltd atf EBVG #2 Trust t/as PBV Plumbing Solutions v Turner
 QCATA 38
Senior Member Stilgoe OAM
03 May 2016