Vivlios v The Harris Group[2020] QCATA 155

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Harris Group (`Harris’) sues Jim Vivlios and his wife Ligeri Vivlios (`the Vivlios’) for professional accountancy fees. Harris alleges that those fees are due and payable for its services to them personally^[1] in connection with an official liquidator’s inquiry into their dealings as officers of a family company.
2. [2]
   The primary proceedings (MCD548/19 versus Jim, and MCDT549/19 versus Ligeri) were tried jointly at Southport on 3 December 2019. The same arrangement applies to these applications.^[2]
3. [3]
   The Tribunal awarded Harris $12,877.38 against Jim Vivlios and $17,599.91 against Ligeri Vivlios, with costs in each case.
4. [4]
   The Vivlios both seek leave to appeal^[3] against those decisions. The evidence and the proposed grounds of appeal are the same in each case:

   1. (a)
      An application for Miscellanous Matters was not dealt with, which amounted to a denial of procedural fairness, also described as natural justice.
   2. (b)
      The Tribunal’s findings of personal liability are in error.
   3. (c)
      The Tribunal erred in not adopting the `weight of evidence’ [sic] supplied in an affidavit of Bill Vivlios, father of Jim, filed on behalf of the Applicants.
   4. (d)
      Harris failed to comply with an order to give particulars made on 15 October 2019, resulting in a denial of natural justice.

Ground (a)

5. [5]
   The miscellaneous application in question, filed on 4 October 2019, sought a transfer^[4] of the proceedings from the Tribunal to the Magistrates Court. In support of that application it was submitted that there were not two separate causes of action, and that, in proceeding as if there were, Harris was perpetrating an abuse of process by splitting a single claim so as to be within the monetary jurisdiction of the Tribunal.^[5]
6. [6]
   However, according to Mr Vivlios, the Magistrates Court declined to intervene,^[6] Apart from that brief remark, the question of a transfer received little further attention at the trial. Precisely how or why the Vivlios would have been better off if sued – jointly or separately – in a Magistrates Court was not explained. A contention that the Vivlios couple’s debts, if any, were joint, not separate, was not raised at the trial.
7. [7]
   Invoices addressed to Jim Vivlios alone, attached to the initiating process in his case bear dates from September 2014 to May 2019. There is no evidence that these evoked any complaint that they should be addressed to Mrs Vivlios as well.
8. [8]
   The Response of Jim Vivlios filed on 23 August 2019 was apparently not met with a similar complaint. It merely claims that a payment already made `covers the invoices in full against Jimmy Vivlios’.
9. [9]
   Invoices addressed to Ligeri Vivlios and attached to the initiating process in her case bear dates from September 2014 to May 2019. There is no evidence that these evoked any complaint that they should be addressed to Jim Vivlios as well.
10. [10]
    The issue of `splitting’ of Harris’ claims did not arise until two months after the Responses were filed.
11. [11]
    The Adjudicator, as judge of fact, was satisfied that two separate claims were appropriate, and there is evidence to support that conclusion.
12. [12]
    Ground (a) is insubstantial.

Ground (b)

13. [13]
    Apart from the evidence described above there is other material to support the findings of personal liability.
14. [14]
    While maintaining that all Vivlios debts to Harris had been paid, the Appellants implicitly admitted that the debts in question did previously exist. So much appears in the Responses of each Appellant.
15. [15]
    So far as Jim Vivlios is concerned, there his email to Harris dated 15 October 2018 which reads in part:

With your account owing I know there is monies owing to you. ... I will be able to give you some money in January as there is no school fees for 2 months.

16. [16]
    On the next day^[7] Jim Vivlios emailed Harris again, to the same effect. That missive is marked `without prejudice’ but the mantra is ineffectual. A “without prejudice” communication that expressly or impliedly admits liability and merely requests time to pay is not privileged because the legal rights of the creditor are not contested.^[8] A further acknowledgement of debt was sent on 7 November 2019. Privilege was not then claimed.
17. [17]
    Having regard to the detailed documentary evidence tendered by Harris, the Adjudicator preferred the evidence of Harris to that of Jim and Ligeri Vivlios, as she was entitled to do. See [26]-[28] below. The second proposed ground of appeal is rejected.

Ground (c)

18. [18]
    The weight of Bill^[9] Vivlios’ evidence was a matter for the Adjudicator. It is not enough to argue, in effect, that the Adjudicator should have given more weight to that evidence, and, inferentially, less weight to Harris’ case. By no means was Bill’s material ignored. On the contrary, his evidence fills 20-odd pages of a 62-page transcript. Essentially his evidence is that he agreed `to pay for all the Vivlios’ family entities’.^[10]
19. [19]
    On the other hand, Harris was adamant that the Jim and Ligeri invoices were distinct matters, `to be dealt with separately’.<sup>[11]</sup> `Bill made it very clear that he wasn’t going to pay for their debt ... That was to be their costs’.^[12] The Adjudicator accepted that version.

Ground (d)

20. [20]
    On 15 October 2019 the Tribunal ordered Harris to provide further and better particulars of his claims. Pursuant to that order Harris prepared spreadsheets distinguishing fees for which the Vivlios were personally liable from charges to other entities.
21. [21]
    However, at the trial it was contended that those particulars had not been duly served upon Jim or Ligeri Photios. Discussion of this procedural issue occupied much of the time devoted to the hearing.
22. [22]
    It was not alleged that Harris simply failed to prepare and issue the material ordered, but rather that it was sent it to an incorrect address.^[13] Initially there were ominous suggestions that the proceedings might be dismissed for non-compliance with an order.^[14] Harris - not the Vivlios - sought an adjournment, which the Adjudicator was disinclined to grant.^[15]
23. [23]
    However, as the hearing proceeded the Adjudicator became increasingly sceptical about the alleged non-receipt of the particulars^[16], and eventually she discredited it:

The key [is], though, if Mr and Mrs Vivlios got it. I had some doubts at the beginning that they had. I believe now that they did get it ... and [that] they have had ample opportunity to present this to some person to assess it and provide a defence and a month was given to do that. Mr Vivlios has said he’s given it to the accountant, the accountant says, `I can’t work this out’, and that seems to me to be an inadequate defence given a four week time period to assess those particular documents.^[17]

[Y]ou’ve had a month, you’ve been given a broken down spreadsheet showing ... the amounts, the payments, what’s attributable to personal items etcetera.^[18]

I am satisfied that these documents were received by Mr and Mrs Vivlios because it includes their email addresses …   The attachments themselves include not just the invoices but also spreadsheets broken down for each party to this particular matter.^[19] 

24. [24]
    As already noted, the Vivlios did not seek an adjournment. Mr Vivlios was `happy to look at the spreadsheet’ at the hearing, `because ... we’ve paid the whole bill in full’.^[20] In the light of the Adjudicator’s findings noted above, there is no reasonable basis for a claim that natural justice was denied. The fourth ground of appeal is not viable.

Nature and limitations of leave application

25. [25]
    It is appropriate to summarise the nature and limitations of an application for leave to appeal and the functions of the primary decision maker.
26. [26]
    An applicant for leave to appeal must present a reasonable argument that the decision in question contains an appellable legal error – a mistake or misapplication of the applicable law, or a finding of fact that has no support in the evidence, or one that is based on a crucial mistake of fact, or is `glaringly improbable’.^[21] Findings of fact or credit are the function of the trial judge. Assessments of the relative weight of competing evidence are seldom disturbed.^[22].
27. [27]
    An application of this kind is not an opportunity to revisit and re-run the trial, or to adduce evidence or arguments that could have been presented at first instance, but were not. It is not nearly enough to express disappointment, or to entertain a subjective feeling that justice has not been done.^[23]
28. [28]
    There is no appellable error in making a decision with which other reasonable minds may differ. Findings will not be disturbed where they have rational support in the evidence, even if another reasonable view is available.^[24]

If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge against the weight of evidence.^[25]

 Overview

29. [29]
    These cases turn upon their own facts as found by the primary Tribunal. Harris affirmed, and the Adjudicator accepted, that each Appellant, as a company officer personally and severally answerable to a liquidator, was individually a client of Harris.^[26] The essential findings are (i) that the debts alleged were incurred by Mr and Mrs Vivlios personally; and (ii) that those debts have not been fully paid. A plea of full payment, advanced by the Vivlios as their `whole case’, was firmly rejected.^[27]
30. [30]
    There was ample evidence to support those findings in the oral and documentary evidence of Harris, and in the fact of part payments, and in the admissions of debt that accompanied them.^[28] Those acts of the Applicants refute their denials of personal liability and their professed belief that Vivlios senior paid their debts in full.^[29]

Conclusion

31. [31]
    There is no reasonable prospect of demonstrating appellable error in the reasons of the primary Tribunal. Accordingly leave to appeal must in each case be refused,

ORDER

The applications for leave to appeal numbered APL004 of 2020 and APL005 of 2020 are dismissed.