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Kooralbyn Resort Pty Ltd v Livingstone Services (Aust) Pty Ltd[2020] QCATA 2

Kooralbyn Resort Pty Ltd v Livingstone Services (Aust) Pty Ltd[2020] QCATA 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kooralbyn Resort Pty Ltd v Livingstone Services (Aust) Pty Ltd [2020] QCATA 2

PARTIES:

kooralbyn resort pty ltd

(applicant)

v

livingstone services (aust) pty ltd

(respondent)

APPLICATION NO:

APL179-19

ORIGINATING APPLICATION NO:

MCDO61060 of 2018 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

10 January 2020

HEARING DATE:

7 January 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL whether application for leave to appeal filed in time – where time calculated from provision of written reasons for primary decision – where retainer for professional advocacy – whether estimate of fees accepted - whether person purporting to accept authorised to do so – whether Corporations Act 2001 s 128 applicable – whether purported agent knew or suspected assumption of authority incorrect – whether appellable error shown – nature and limitations of application for leave to appeal

Corporations Act 2001 (Cth) s 128, s 129

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 122, s 143

Abalos v Australian Postal Commission (1990) 171 CLR 167

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Caratti v Mammoth Investments (2016) WAR 84

Devries v Australian National Railways Commission (1993) 177 CLR 472

Equiitcorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50

Fox v Percy (2003) 214 CLR 118

Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

Gallop Reserve Pty Ltd v Matton Developments Pty Ltd & Anor [2019] QSC 113

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

Pickering v McArthur [2005] QCA 294

S v Crimes Compensation Tribunal [1998] 1 VR 83

Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331

Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722

Tonna v Mendonca [2019] NSWSC 1849.

 

APPEARANCES & REPRESENTATION:

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

Application in time? 

  1. [1]
    Logically the first question is whether Kooralbyn’s application for leave to appeal was filed in time. The Respondent (`Livingstone’) contends that it was not.[1] The applicant (`Kooralbyn’) has made no application for extension of time.
  2. [2]
    The relevant timeline, as it appears in QCAT’s records, is as follows. The primary decision was given on 27 May 2019. On 4 June 2019 Kooralbyn applied for reasons in writing, as it was entitled to do.[2] The registry posted that document to Kooralbyn on 14 June 2019, which was a Friday. In the course of post, the reasons could not have been delivered until 17 June 2019, at the earliest.
  3. [3]
    Where written reasons are requested, the time limit of 28 days for filing an application for leave to appeal runs from the `relevant day’ – here, the day on which Kooralbyn was `given written reasons for the decision being appealed against’,[3] namely 17 June 2019, if not later.  Calculated conservatively from 17 June 2016, the prescribed 28 day period[4] expired at midnight on 15 July 2019. The application for leave was filed earlier that day.
  4. [4]
    Accordingly the application was filed within the prescribed time, and Livingstone’s submission to the contrary is rejected.

Substance of the proposed appeal

  1. [5]
    This is a dispute about fees for advocacy services provided by the Respondent (`Livingstone’) to the Applicant (`Kooralbyn’). It is common ground that Livingstone is entitled to $1,500. The question is whether Livingstone is entitled to $10,338.20 awarded to it by the Tribunal on 27 May 2019.               Against that decision Kooralbyn seeks leave to appeal. A threat by Kooralbyn to counterclaim for `misleading and deceptive conduct’ did not materialise.[5]

Background

  1. [6]
    At material times Kooralbyn was a tourist resort situated in the Gold Coast hinterland, Queensland.  Livingstone, for its part, offered administrative and advocacy services in industrial tribunals, including the Fair Work Commission. Livingstone does not profess to be a legal practitioner; it describes itself as a `human resources’ firm.[6]
  2. [7]
    In or about September 2016 a former employee of Kooralbyn named Young began proceedings against the company in the Fair Work Commission, claiming wrongful dismissal, breach of discrimination laws and almost $30,000 in wages.[7]
  3. [8]
    Fair Work convened a conciliation conference on 29 September 2016.[8] It is common ground that Kooralbyn engaged Livingstone to represent it at the conference for a fee of $1,500.[9] Young’s representative offered to settle for 26 weeks’ wages; that was rejected. Absent any settlement the Young v Kooralbyn dispute was referred to an arbitral hearing, which was expected to occupy two days.
  4. [9]
    Initially Livingstone was optimistic that any award to Young would be limited to a few weeks’ salary.[10] Subsequently, however, it resiled from that opinion when it learned that certain witnesses were not available.[11]
  5. [10]
    Following the conciliation conference Livingstone reported the result to Kooralbyn and advised:

We note that you were going to consider the appropriateness of seeking to reach a commercial settlement with Mr Young. We note that our costs of representing the Resort at a 2 day hearing would be in the vicinity of $10,000 to $12,000. We await your further instructions in this regard.[12]

 Was the retainer renewed?

  1. [11]
    Livingstone’s evidence[13] is that, on the next day, in response to that advice, the new manager of Kooralbyn, David Thomas, telephoned Livingstone with oral instructions to represent his company at the hearing. No written confirmation followed.[14]
  2. [12]
    On 25 November 2016 Livingstone appeared on the hearing which, in the event, produced an early settlement. The Adjudicator took that fact into account in determining quantum.[15]
  3. [13]
    On 30 November 2016 Livingstone invoiced Kooralbyn for fees additional to those for the conciliation conference, including preparation for the arbitration trial on 22 and 24 November 2016 and appearance at the Fair Work tribunal on 25 November 2016.  The amount claimed was $10,793.997 including GST.
  4. [14]
    That amount remains unpaid. Kooralbyn’s position is that the $1,500 paid for the conciliation appearance covers the whole Livingstone’s services, from initial instructions on 3 November 2016 to the settlement reached on 29 November 2016.[16]
  5. [15]
    Kooralbyn says that if its manager Thomas purported to accept the estimate of hearing fees in Livingstone’s email of 5 October 2016 (which is denied[17]) he had no authority to do so. Neither party called Thomas as witness, and apparently neither made any attempt to do so.  On this point of Thomas’ absence we have only Huang’s obscure and somewhat triumphant statement: `I was told [Thomas] went back to overseas [sic], so if you need him to be your witness you need to get his sworn witness [sic], not yours’.[18] The apparent indifference to Thomas’ absence suggests that his presence would not have assisted Kooralbyn’s case.

The authority issue

  1. [16]
    Kooralbyn’s position is that the only person with authority to engage Livingstone was the resort company’s principal, Peter Huang (`Huang),[19] and that Huang did not do so.
  2. [17]
    In support of that allegation Kooralbyn relies on a single sentence in an email from Thomas’ predecessor (Pryor) to Livingstone’s Aspromourgos on 9 September 2016, relating to the latter’s appearance at the conciliation conference on 29 September: 

Afternoon Alex, just had OK from Owner to proceed with your assistance.

  1. [18]
    The significance of that remark, according to Kooralbyn, is not merely that Huang is satisfied with the then manager’s decision to engage Livingstone. Rather, it means much more, namely that when Thomas dealt with Livingstone in late November 2016, Livingstone was effectively notified that the `project manager’ could not even commit Kooralbyn to a relatively modest payment of $1,500, without Huang’s express and specific permission to incur that particular obligation. (For convenience sake, I shall refer to this proposition as `the special arrangement’.)
  2. [19]
    There is no evidence that Huang himself told Livingstone of the special arrangement before Thomas responded to Livingstone’s email of 5 October 2016, engaging it as counsel for the trial.
  3. [20]
    In support of its case Kooralbyn points to an improbability that Huang, as an experienced and influential man of business, would commit a five-figure sum to the defence of what Livingstone initially and described as a relatively minor claim. But in fact, despite that early optimistic advice the aggrieved ex-employee sought 26 weeks’ wages for unfair dismissal and $6,250 for wages in arrears as well as alleging sex discrimination – an amorphous claim impossible to quantify in advance, one that exacerbated the usual hazards of litigation, and open to substantial compensation at the hands of a committed or sympathetic assessor. Besides, the decision, if any, to proceed was not made by Huang, but by his manager.
  4. [21]
    On the other hand, it may seem improbable that Huang, as a seasoned businessman, would seriously expect $1,500 to cover not only attendance at a conciliation conference, but also preparation for, and attendance at an anticipated 2-day trial, not to mention correspondence and administration.

The Tribunal’s findings

  1. [22]
    The Adjudicator accepted Livingstone’s evidence that in fact Thomas instructed Livingstone to appear at the Fair Work hearing on 24 November 2016.[20] (Contrary to a popular misunderstanding shared by Huang, acceptable evidence need not be in documentary form.) In Thomas’ absence, no other direct evidence of that exchange was available.
  2. [23]
    The next question is whether Thomas had ostensible (or apparent) authority to give that instruction on behalf of Kooralbyn. In other words, did Livingstone reasonably believe that Kooralbyn held out Thomas as entitled to act on its behalf?[21] The Adjudicator found that it did. It was then irrelevant whether the agent had actual authority to enter into the contract.[22]

Corporations Act 2001 (Cth)

  1. [24]
    The finding of ostensible authority is fortified by the Corporations Act 2001 (Cth). A person dealing with a company is entitled to make certain `assumptions’.[23] In particular he may assume that `anyone who is held out by the company to be an officer or agent of the company (as Thomas manifestly was) ... has the authority to exercise the powers and perform the duties customarily exercised by that kind of officer or agent of a similar company.’[24] Internal arrangements between principal and agent, such as in-house instructions or practices are beside the point. Thomas was held out as the manager of a large and reputable enterprise, not a corner grocery store. It was reasonable to assume that the manager of such a business would be empowered to incur expenses, in the course of business, to the extent of $10-12,000 –hardly a major item in a concern which advertises a private golf course and accommodation for 100 guests.
  2. [25]
    A late attempt to adduce the manager’s employment agreement as fresh evidence fails, simply because Livingstone is not a party to that compact, and there is no evidence that Livingstone had notice of its contents.
  3. [26]
    The phrase `in relation to dealings with a company’ is widely construed, so that it is not necessary that the agent has actual or ostensible authority to enter the particular transaction in question.[25]

Disqualification not applicable

  1. [27]
    It is true that a person is not entitled to make an `assumption’ if, at the time of the dealing, he knew or suspected that it was incorrect.[26]  Kooralbyn relied on the alleged special arrangement that principle However, the Adjudicator held that it would be drawing `a very long bow’[27] to treat what a different manager, not called as a witness, said about Huang on a different occasion. In other words, the Adjudicator resolved any ambiguity in Pryor’s September 2016 remark in favour of Livingstone. It was within his province to do so, the decision was not unreasonable, and it is not for this appeal tribunal to revisit the issue. It follows that the disqualifying proviso in section 128(4) of the Corporations Act 2001 did not apply.

Summary

  1. [28]
    In summary there were two ultimate issues: (i) Did Thomas instruct Livingstone to proceed, within the stated range of fees? The Adjudicator found that he did, and there was evidence, albeit sketchy, to support that finding. If there is any evidence to support a finding of fact the finding is not liable to be set aside.[28] (ii) Did Thomas have ostensible, if not actual authority, to act as he did? The Adjudicator, rejecting the `special arrangement’ defence, reasonably held that he did.

Nature and limitations of application for leave

  1. [29]
    An application for leave to appeal is not an opportunity to re-run the trial. Primary decisions of the Tribunal are normally expected to be final – hence the preliminary hurdle of leave before the substantive appeal is considered. Kooralbyn’s difficulty is that primary findings of fact are seldom disturbed on appeal. Before that is done, it must be shown that the decision in question is `glaringly improbable’ or contrary to compelling evidence.[29] That cannot reasonably be said here. Even if there are two reasonable views, a preference for one view over the other is not an appellable error.[30]

[N]o 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.[31]

Resolution

[30] I discern no appellable error resulting in a substantial injustice.[32] The application for leave to appeal must be refused.

ORDER

The application for leave to appeal is refused.

Footnotes

[1]Submissions in reply filed 10 September 2019 paragraphs 1-13.

[2]QCAT Act s 122.

[3]QCAT Act s 143(5)(c).

[4]QCAT Act s 143(3).

[5]Email Kooralbyn to Livingstone 29 August 2018 page 3.

[6]Email Livingstone to Kooralbyn 29 August 2018.

[7]Transcript of hearing 27 May 2019 (`T’) page 10 lines 29-37.

[8]Email Livingstone to Kooralbyn 5 October 2016.

[9]Email Kooralbyn (Huang) to Livingstone 29 August 2018.

[10]Email  Livingstone to Kooralbyn 5 October 2016.

[11]T page 11 lines 23-26.

[12]Email  Livingstone to Kooralbyn 5 October 2016.

[13]T page 6 lines 35-38 (Aspromourgos).

[14]T page 6 line 38.

[15]T page 19 line 7.

[16]T pag 13 line 9 (Huang).

[17] Email Kooralbyn to Livingstone 30 August 2018.

[18]Email Huang to Livingstone 30 August 2018.

[19]T page 5 lines 11-12.

[20]T page 18 lines 2-10.

[21]Equiitcorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132; Tonna v Mendonca [2019] NSWSC 1849 at [391]- [392].

[22]Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503.

[23]Corporations Act 2001 (Cth) (`CA’) s 128(1).

[24]CA s 129(3)(b).

[25]Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 at 733; Caratti v Mammoth Investments (2016) WAR 84 at [359]-[363]; Gallop Reserve Pty Ltd v Matton Developments Pty Ltd & Anor [2019] QSC 113 at [77].

[26]CA s 128(4).

[27]T page 18 line 4.

[28]S v Crimes Compensation Tribunal [1998] 1 VR 83 at 91.

[29]Fox v Percy (2003) 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.

[30]          Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131].

[31]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.

[32]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA; Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331.

Close

Editorial Notes

  • Published Case Name:

    Kooralbyn Resort Pty Ltd v Livingstone Services (Aust) Pty Ltd

  • Shortened Case Name:

    Kooralbyn Resort Pty Ltd v Livingstone Services (Aust) Pty Ltd

  • MNC:

    [2020] QCATA 2

  • Court:

    QCATA

  • Judge(s):

    Dr J R Forbes, Member

  • Date:

    10 Jan 2020

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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