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- Unreported Judgment
Puchala v Boon QCATA 130
Puchala t/as Elite Electrical & Airconditioning Pty Ltd v Boon t/as Environmentally Sustainable Technologies  QCATA 130
Matthew Puchala t/as Elite Electrical and Airconditioning Pty Ltd
Daniel Boon t/as Environmentally SustainableTechnologies
Application and Appeals
4 October 2017
20 November 2017
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant installed a solar power system under an “exclusivity contract” – where the respondent claimed the installation did not meet the required accreditation standards – where the tribunal’s decision was made by default due to the applicant’s non-appearance – where the tribunal refused the applicant’s application to reopen – where the applicant appealed and later sought to amend the grounds of the appeal – whether the applicant can file an application for leave to appeal out of time – where relief from a procedural requirement is granted
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES – where the applicant claims neither he nor the respondent have standing to personally sue – where both parties acting as agents for respective companies – where Clean Energy Council accreditation for solar installers is personal to the applicant – where privity of contract precludes non-parties from enforcing contractual obligations – where agents of disclosed principals can neither sue nor be sued
APPEARANCES and REPRESENTATION (if any):
REASONS FOR DECISION
- The applicant applies for leave to appeal a tribunal decision in the minor civil disputes jurisdiction. The challenged decision is for the payment of $9,774.70 including a tax invoice amount of $7,040 the respondent says it should not have to pay the applicant for not properly installing a solar power system under an “exclusivity contract”.
- The order was made in default of appearance on 7 December 2016. The applicant was the sole carer of his two year old son who was ill. An application to reopen on the grounds that the applicant’s non-attendance as through no fault of his own was refused on 16 February 2017 presumably because the applicant’s explanation was not satisfactory or his case lacked sufficient merit to justify a reopening.
- The application for leave to appeal was not filed until 24 April 2017. There is an application to extend the time for filing but it is unsupported by any grounds or explanatory material.
- On 21 July 2017 the applicant sought legal advice about the validity of the default order for the first time. Based on that advice he applies to amend the proposed grounds of appeal to add a new one to the effect that he was not the proper respondent to the claim.
- The orders sought are all opposed.
- An application to set aside a final order in a proceeding made by default will generally not be granted unless: (a) the non-appearing party is practically blameless; (b) there is no disentitling conduct such as unacceptable delay in filing; and (c) there is a prima facie defence.
- A party has a right to have default orders set aside if they were made contrary to law or procedural rules or if regardless of his own laxity it appears the successful party was not really entitled to the benefit of the order in the first place.
- Solar systems installed by Clean Energy Council (CEC) accredited installers are eligible for government incentives and STC rebates (or solar credits).
- Only individual trades people can hold an installer’s licence.
- The applicant deposes to being registered CEC solar installer A4674769 but does not hold an ABN nor trade as Elite Electrical and Airconditioning. He is sole director and secretary of Elite Electrical and Airconditioning Pty Ltd ACN 161288008. On 11 December 2015 he signed and executed a contract “on behalf of” Elite Electrical and Airconditioning Pty Ltd with Environmentally Sustainable Technologies (as manufacturer’s agent of Akcome Power Pty Ltd) to install solar systems “in a best practice manner” using materials supplied solely by Environmentally Sustainable Technologies.
- On 15 December 2015 he carried out work for Pro Honda Motorcycle as an employee for the company. Tax invoice number 1991 was issued for $7,040.00 to Akcome on account of the sub-contract work. It was paid in full on 21 December 2015.
- On 14 September 2016 the respondent commenced QCAT proceedings Q171/16 in his personal capacity against the applicant trading as Elite Electrical and Airconditioning.
- The applicant contends that neither he nor the respondent can personally sue or be sued on the contract because they were both acting as agents for companies at the time.
- On the basis that CEC accreditation is personal to the applicant the respondent claims that a company cannot sign an instalment agreement and it does not contract with companies for this reason.
- Only the parties to a contract can hold each other to their mutual promises but the privity of contract rule precludes non-parties (regardless of whether they are benefitted or burdened by an agreement) from directly enforcing a party’s obligations for being held personally liable for its due performance.
- A related but distinct principle of contract law is that the promisee must give valuable consideration for the promise before he or she can enforce a promise against the other party.
- Under the law of agency an agent enters into a contract for and on behalf of the principal who, in that capacity, is entitled to enforce the contract whether or not his or her interest is disclosed.
- The agent of a disclosed principal can neither sue nor be sued on the contract. This is because he or she was acting in a purely representative capacity.
- It does not matter that the other party to the contract thought that there were only two parties and that the agent was contracting personally as one of them. Unilateral mistakes as to identity do not vitiate a contract without fraud.
- Accordingly, the facts in issue were whether the applicant was truly acting as “agent” and contracted as such with the respondent or his or some other company and therefore not liable.
- It is clear on the face of the contract document that Elite Electrical and Airconditioning Pty Ltd was the contractor and not the applicant personally. There is also a prima facie case that the respondent also contracted as Akcome Power’s agent.
- The ex parte decision is fundamentally defective and incurable on appeal. The application to set it aside must, therefore, succeed.
- The matter could be returned to the tribunal for reconsideration (with or without hearing additional evidence on any unresolved disputed facts) but it is hard to see how the documentary evidence could be reasonably construed so as to support an inference other than that the applicant was acting as the company’s authorised agent within scope.
- On that basis a hearing is not needed. Having regard to the objects of the legislation the appeal tribunal has decided to substitute an order of dismissal.
- The respondent can reinstate proceedings against the company to enforce any promise it made in the exclusivity contract.
 cf. Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107 where, exceptionally, a third party within the class of intended beneficiaries under a contract of liability insurance may enforce the indemnity it provides.
- Published Case Name:
Matthew Puchala t/as Elite Electrical & Airconditioning Pty Ltd v Daniel Boon t/as Environmentally Sustainable Technologies
- Shortened Case Name:
Puchala v Boon
 QCATA 130
20 Nov 2017