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Mahn v Vukoja QCATA 190
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mahn v Vukoja  QCATA 190
ORIGINATING APPLICATION NO/S:
18 December 2018
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where claim against individuals – where claim amended to remove the individuals as respondents and replaced by company – whether company the correct respondents – whether not final decision – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)
Cachia v Grech  NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
QUYD Pty Limited v Marvas Pty Ltd  1 Qd R 41
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
- On 22 November, 2016 Mr Mahn met with Mr Vukoja to obtain a quote for the supply of turf and a garden bed.
- Mr Vukoja provided an initial quote of $5,500 and then revised the quote on 28 November, 2016 to a new price of $6,500.
- On 1 December, 2016 Mr Mahn paid a deposit of $4,000 to Mr Vukoja via electronic transfer to a Commonwealth Bank account in the name of Rapidworx Earthworks Pty Ltd. These account details were listed under the heading ‘Direct Deposit Details’ on the invoice. The invoice was headed 'Rapidworx’ and in the top right-hand corner it bore the name Tony Vukoja, a mobile phone number and an email address.
- On 9 December 2016 via SMS Mr Mahn advised Mr Vukoja that he no longer required the job to be undertaken, and sought to receive a refund of his deposit of $4,000.
- In summary, what occurred after this date was Mr Mahn filed in QCAT an application for a minor civil dispute - consumer dispute on 4 January, 2017. Mr Mahn’s name is listed as the applicant and Tony Vukoja – Rapidworx is listed as the respondent.
- The matter proceeded to a mediation where the respondent is listed on QCAT records as Rapidworx. It is noted on the certificate of mediation outcome that the respondent is Tony Vukoja trading as Rapidworx. Mr and Mrs Vukoja attended the mediation as did the applicant. There was no resolution on 21 February 2017 at this mediation.
- The matter was listed to be heard as a ‘JP hearing’. There was a series of emails exchanged including applications for miscellaneous matters to adjourn the proceedings, an adjournment was granted on 2 August 2017and an application was filed under the name of Rapidworx. In this application Tony Vukoja applied for another adjournment in the proceedings, this adjournment was also granted. To further complicate matters, on 31 August 2017 Mr Mahn filed an affidavit which included another person’s name as the applicant along with his, Katia Fainio. On 20 September 2017 a response was filed under the name of Rapidworx.
- Ultimately there was a hearing on 10 October 2017. It is noted that Mr Mahn appeared in person and there was no appearance from the respondent. The nature of the claim was referred to as a refund of deposit monies. The decision of the panel was that the respondent was to pay the applicant the sum of $4,000 within 21 days of the date of the order. The respondent is named on the top of the decision form as Rapidworx.
- The respondent did not pay the money as ordered. Mr Mahn followed the statutory process and sought to enforce the decision of QCAT through the Magistrates Court. It would appear that the magistrate found that he could not proceed as Rapidworx was a business name for a deregistered company called Rapidworx Earthworks Proprietary Limited.
- Mr Mahn then applied again to QCAT, making an application MCDO608-18 to recover the same amount of money only this time he named the respondents as Mr Tony Vukoja and Mrs Stacey Vukoja.
- The matter was as heard on the papers by a QCAT JP Panel on 10 July 2018, and the tribunal ordered that Tony and Stacey Vukoja be removed as respondents and Rapidworx Pty Ltd substituted as the Respondents. In addition, it was ordered that the applicant was to undertake an ASIC search to determine the directors of Rapidworx Pty Ltd and to serve the parties named as directors with the papers before this matter proceeded to mediation. It was further ordered that a mediation listed for 17 July 2018 was vacated.
- An application for leave to appeal was filed by Mr Mahn on 16 July 2018. The tribunal made directions on 31 July 2018 that Mr Mahn must establish that the application for leave to appeal had been given to the respondents. This occurred on 3 August 2018 when a copy of an affidavit of service was filed. Further directions were made that Mr Mahn had to make submissions detailing the alleged error by the original decision-maker and any further submissions. These were received by the tribunal on 22 August 2018. Mr and Mrs Vukoja were to respond to Mr Mahn’s material by 21 September, 2018. It would appear that Mr Vukoja contacted the tribunal on 10 June 2018 prior to the decision that is under appeal, indicating that he would not be attending the matter as he was not involved in a company called Rapidworx, he said he was only a site supervisor, not a director, and that his wife Stacey had nothing to do with Rapidworx nor was she ever employed by Rapidworx. He continued on in his email to allege that Mr Mahn had ‘harassed’ himself and his wife and that they considered it to be a legal matter that they would pursue in other forums.
- The last contact Mr and Mrs Vukoja made with QCAT was on 2 August 2018 when Mr Vukoja emailed a case manager at QCAT stating:
What fresh evidence do I give you when we have provided asic search and clearly say me nor Stacey are directors and u guys made decision last time say we are not that David needs to find director of Rapidworx which again isn’t us !!
- Leave to appeal is necessary from a minor civil dispute proceeding. In addition to being a decision in a proceeding for a minor civil dispute, this is a decision that is not the tribunal’s final decision in the proceeding. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is it necessary to correct a substantial injustice to the applicant caused by some error? Is it a question of general importance upon which further argument, and a decision of the appellate court or tribunal would be to the public advantage?
- Although Mr Mahn’s grounds are not clearly articulated in his application it would appear that he is requesting leave because there is a reasonably arguable case of error in the removal of the respondents’ names from the claim and the order that the applicant undertake a search of ASIC records for the identities of the Directors of Rapidworx Pty Ltd and serve them with papers before the matter could proceed. It is Mr Mahn’s contention that he cannot comply with these orders and that there will be a substantial injustice to him, leaving him without a remedy if the correct identity of the respondent cannot be ascertained. It would appear that the company that the decision-maker ordered that he conduct searches for and to serve papers upon the directors of does not exist.
- In these circumstances, to determine whether leave should be granted, the tribunal finds that the applicants are essentially saying that they were denied natural justice, and that there is a fundamental error in the removal of the respondents and the order that they search for directors of a non-existent company. Despite the absence of comprehensive submissions from both parties, I accept that, without leave to appeal and some means of redressing the orders made in July 2018, there is no way to further progress this matter and have it heard upon its merits. On the material before the Tribunal the orders to remove the Vukojas as the respondents and for the applicant to search for the directors of Rapidworx Pty Ltd and serve paper upon them (presumably so that they may become the respondents in the matter) should not have been made. There was no evidence provided that that Rapdiworx Pty Ltd was the correct respondent and whether it in fact existed or not. It would appear from the evidence available that a company with an ACN linked to the name Rapidworx has a different name and seems to be deregistered. The only order which was appropriately made was the third order which was an order to vacate a mediation listed on 17 July 2018.
- Based on the grounds discussed above, leave to appeal is granted and the appeal is allowed. As the evidence needs to be further explored this is not a case where the appeal tribunal can substitute its own decision. Therefore the tribunal orders:
- (a)Orders 1 and 2 of 10 July 2017 are vacated;
- (b)That Tony and Stacey Vukoja are restored as respondents in this matter pending further order of the Tribunal; and
- (c)The proceeding is remitted to the minor civil disputes jurisdiction to be reheard before another tribunal member/adjudicator/justice of the peace.
 QCAT Act, s 142(3).
 Ibid ss 142(3)(i), 142(3)(ii).
 Cachia v Grech  NSWCA 232, .
 QUYD Pty Limited v Marvas Pty Ltd  1 Qd R 41.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 578, 580.
- Published Case Name:
David Mahn v Tony Vukoja and Stacey Vukoja
- Shortened Case Name:
Mahn v Vukoja
 QCATA 190
18 Dec 2018