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Pappas v Meiklejohn's Accountants[2017] QCATA 60

Pappas v Meiklejohn's Accountants[2017] QCATA 60

CITATION:

Pappas v Meiklejohn’s Accountants [2017] QCATA 60

PARTIES:

Athanasia Pappas

(Applicant/Appellant)

v

Meiklejohn’s Accountants

(Respondent)

APPLICATION NUMBER:

APL381 -16

MATTER TYPE:

Appeals

HEARING DATE:

29 March 2017

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

22 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for an extension of time is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where mediation agreement entered into by respondent on own behalf and on behalf of his mother – where breach of agreement – where tribunal made order to give effect to agreement – where application for leave to appeal order made out of time – whether grounds to extend time

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61(1), 61(3), 85(5)

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

Crime and Misconduct Commission v Chapman and Anor[2011] QCAT 229

APPEARANCES and REPRESENTATION (if any):

Applicant:

S Lane of Counsel instructed by Rostron Carlyle

Respondent:

S Gow of Legends Legal Group

REASONS FOR DECISION

  1. [1]
    Athanasia Pappas is an elderly lady. She has two sons, Speros and Dimitrios. In an enduring power of attorney dated 7 November 2013, Ms Pappas appointed both sons as her attorneys, to act severally.
  2. [2]
    In August 2015, Meiklejohn’s Accountants filed a minor debt claim against Ms Pappas and Dimitri, for $25,410.99. The claim was reduced from $32,489.50 to bring it within the minor civil disputes jurisdiction of the tribunal.
  3. [3]
    Annexed to the claim were four invoices, only one of which was addressed to Ms Pappas. The other three invoices were addressed to ‘Mr D Pappas’. The biggest invoice, $19,509.60, was addressed to Mr D Pappas, director of Pappas Pty Ltd. That invoice was dated 17 August 2009.
  4. [4]
    The dispute went to mediation. Dimitrios appeared at the mediation. The parties agreed that ‘the respondent’ would pay the full amount of the debt by monthly payments of $500 commencing 2 March 2016, with additional payments of $250 per month in the second half of the year until the settlement sum was paid in full.
  5. [5]
    Neither Dimitrios nor Ms Pappas complied with the agreement. Meiklejohn’s asked the tribunal to formalise the agreement into an order. After giving both parties the opportunity to make submissions about Meiklejohn’s application, the tribunal ordered accordingly,[1] by a decision dated 30 June 2016.
  6. [6]
    The decision was registered as a judgment in the Magistrates Court on 19 July 2016. Speros found out about the Magistrates Court judgment, and the tribunal order, in mid to late September 2016.  On 14 November 2016, Speros filed an application for leave to appeal. Speros also filed an application for an extension of time in which to file the application for leave to appeal.
  7. [7]
    The tribunal may extend a time limit fixed for the start of a proceeding.[2] The tribunal cannot extend a time limit if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs.[3]
  8. [8]
    If I allow the extension of time to file the application for leave to appeal, and Meiklejohn’s is ultimately successful in resisting that application, any detriment can be addressed by an order that Ms Pappas and/or Dimitrios pay interest on the admitted debt. If Meiklejohn’s cannot resist the application or leave to appeal, then it has lost nothing. Therefore, I am satisfied that the detriment caused by an extension of time can be addressed by an appropriate order.
  9. [9]
    The tribunal must then consider whether an extension of time is appropriate. In considering that question, the following factors are relevant:
    1. Whether there is a good reason for the delay.
    2. The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
    3. The length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
    4. Overall, whether it is in the interests of justice to grant the extension.[4]
  10. [10]
    D G Thomas J has commented:

Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason (such as those listed above) to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation.[5]

Is there a good reason for the delay?

  1. [11]
    As I have mentioned, Ms Pappas is an elderly lady. She suffers from Alzheimer’s disease, has care providers regularly attending her home, poor understanding of English and is illiterate in her mother tongue of Greek.
  2. [12]
    Mr Lane, on behalf of Ms Pappas submitted Ms Pappas relied on Speros to manage her financial affairs. Speros swore an affidavit stating that he had looked after his mother’s affairs since the death of his father in 2002 but the evidence on the file does not support that contention. Speros did sign Ms Pappas’ home care agreement in 2015 but Meiklejohn’s engagement letter, dated 2008, was signed by Ms Pappas and Dimitrios, not Speros. The invoices, dated 2009 and 2010, were directed to Dimitrios, not Speros. Under the power of attorney, dated 2013, both sons have the ability to make financial decisions.
  3. [13]
    There is nothing on the file to suggest that giving Dimitrios notice of the final order was insufficient. In fact, Dimitrios filed submissions in response to the application for an order, suggesting that Meiklejohn’s had promised to send him details of the claims and he had not received them. It would appear, therefore, that Dimitrios may have had cause to challenge the final order, had he been so minded.
  4. [14]
    While I accept that Ms Pappas may have been under a disability that affected her ability to respond to the final order, I do not accept that her circumstances were such that only Speros had the authority to act on her behalf or ability to take action. If Speros and Dimitrios have a private agreement between them as to how their mother’s affairs are managed, that is a matter for them but not a matter that properly explains the delay.

What is the strength of the proposed case?

  1. [15]
    Speros says that Meiklejohn’s has not produced a retainer agreement, showing that Ms Pappas was liable for the invoices. Of course, the hearing had not reached the stage of requiring evidence and the fact of the retainer had not been disputed. Meiklejohn’s has now produced a retainer, signed by Ms Pappas that binds her to pay the costs of preparing accounting records for a range of entities.
  2. [16]
    Speros says Ms Pappas cannot be liable for debts owed by Pappas Pty Ltd, a company that is now deregistered. Meiklejohn’s retainer predated the deregistration of Pappas Pty Ltd. The invoices predated the deregistration of Pappas Pty Ltd. Deregistration would not affect a pre-existing, personal liability.
  3. [17]
    Speros says Ms Pappas’ capacity to enter into any arrangement was questionable, and that she never saw or spoke to Ms Meiklejohn. One does not need to meet a professional adviser to confirm a retainer. The diagnosis of dementia was made in 2012, well after the date of the retainer. I appreciate that Ms Pappas’ limited English and lack of literacy meant that she could not read and understand the retainer by herself but there is no evidence to suggest that she did not enter into that agreement freely and voluntarily.
  4. [18]
    Speros says that Dimitrios did not sign the mediation agreement on behalf of Ms Pappas as her power of attorney. That is true. Meiklejohn’s say that Dimitrios represented himself as being authorised to act on Ms Pappas behalf. The enduring power of attorney shows that this is true. That might justify an order setting aside the repayment agreement but Ms Pappas is still faced with the difficulty that she signed a retainer.
  5. [19]
    The case against Meiklejohn’s is not so strong, and the interests of justice not so compelling, that an extension of time in which to file the application for leave to appeal is required.

The length of delay

  1. [20]
    I agree that the delay in this case is relatively short. When compared to Meiklejohn’s delay in filing an application to recover these very old debts, the length of the delay is not a reason to refuse an extension of time.

The interests of justice

  1. [21]
    Speros says the interests of justice favour an extension of time because there is now an order against an elderly lady, who knew nothing of the debt, the claim, the mediation agreement or the decision.
  2. [22]
    In reality, it is Speros, not Ms Pappas, who complains about a lack of knowledge. It is likely that Ms Pappas would never have known about the proceedings, even if Speros had been aware of it earlier.  Speros may have a complaint against his brother, but a complaint against the tribunal is not well made.
  3. [23]
    I do not accept that Ms Pappas never owed a debt to Meiklejohn’s. I do not agree that Meiklejohn’s is seeking to enforce a default decision against Ms Pappas. Indeed, Meiklejohn’s did have the benefit of a default decision which, on Dimitrios’ application, was set aside. This decision is giving effect to a mediation agreement, in which Dimitrios was involved and on which the parties defaulted. It is a very different matter altogether.
  4. [24]
    The application for an extension of time is refused.

Footnotes

[1]Pursuant to the Queensland Civil and Administrative Tribunal Act (2009) (Qld) s 85(5).

[2]Ibid s 61(1).

[3]Ibid s 61(3).

[4]Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.

[5]Coppens v Water Wise Design Pty Ltd [2014] QCATA 309.

Close

Editorial Notes

  • Published Case Name:

    Athanasia Pappas v Meiklejohn's Accountants

  • Shortened Case Name:

    Pappas v Meiklejohn's Accountants

  • MNC:

    [2017] QCATA 60

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    22 May 2017

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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