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Brisbane Project Marketing Services Pty Ltd v Think Smart Strategies Pty Ltd QCATA 52
Brisbane Project Marketing Services Pty Ltd v Think Smart Strategies Pty Ltd & Anor  QCATA 52
Brisbane Project Marketing Services Pty Ltd
Think Smart Strategies Pty Ltd
Christopher Owen Ruck
On the papers
Senior Member Stilgoe OAM
12 April 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where oral agreement – where dispute about parties to oral agreement and terms of agreement – where claim dismissed – whether grounds for leave to appeal
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
- In November 2014, Brisbane Project Marketing Services Pty Ltd (BPMS) issued an invoice for $16,500 addressed to Think Smart Strategies Pty Ltd and Christopher Ruck. The invoice was not paid. BPMS filed a minor debt claim in the tribunal. Think Smart and Mr Ruck responded to the claim that neither of them had ever heard of BPMS. The tribunal dismissed the claim.
- BPMS 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.
- BPMS submits that this is not an appeal against the exercise of the tribunal’s discretion based solely on the facts of a particular case where the tribunal made a discretionary determination as the evidence before it. It says that the decision was not confined to the facts of the case but had some question of general importance upon which further argument, and a decision of the appeal tribunal, would be to public advantage. It submits that the tribunal misapplied the doctrine of res judicata because the determination it relied upon was interlocutory in nature. It says that a review of the tribunal’s reasons indicate that, if the evidence was properly applied, there was a reasonable prospect that BPMS could obtain further substantive relief.
- The agreement on which BPMS relied to support the debt was entirely oral. Both Mr Elvin, for BPMS, and Mr Ruck, gave evidence about that agreement. Needless to say, the parties had very different views about the parties to that agreement, the obligations under that agreement, and whether the terms of the agreement had been completed.
- The tribunal found that there was no course of dealing that supported an agreement between Think Smart and BPMS. The tribunal also found that the only document that supported any form of agreement was a draft agreement between Think Smart, Contract Build Pty Ltd and Elpat Pty Ltd.
- The evidence can support the tribunal’s findings. I read the transcript and considered the documents before the tribunal. I can find nothing to persuade me that the tribunal should have taken a different view of the facts. Mr Elvin took the tribunal to some documents which he says supported his claim but there was no document that indicated, in any way, that Think Smart had an agreement with BPMS.
- I am not persuaded that there is any public interest in this proceeding. It was a commercial transaction between two parties, neither of whom bothered to protect their interests by reducing the agreement to writing. If there is any public interest in this proceeding, it is merely to reinforce a well understood principle that commercial transactions should be supported by documents that clearly set out the parties’ rights and obligations.
- I do not understand BPMS’s submission that the tribunal misapplied the doctrine of res judicata. The tribunal was considering a claim for debt for the first time. Neither party argued that the tribunal, or any other court, had heard and determined this issue. The tribunal’s decision was not an interlocutory one; it was a final decision after a hearing on the evidence.
- Contrary to BPMS’s first submission, this is, simply, an appeal on the facts. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
- I note Think Smart has, by correspondence, applied for security for costs. Given that the parties did not have leave for legal representation, there was no hearing on appeal and I have now determined the application for leave to appeal, I see no need for an order for security for costs.
- Published Case Name:
Brisbane Project Marketing Services Pty Ltd v Think Smart Strategies Pty Ltd & Anor
- Shortened Case Name:
Brisbane Project Marketing Services Pty Ltd v Think Smart Strategies Pty Ltd
 QCATA 52
Senior Member Stilgoe OAM
12 Apr 2016