Prasad v Queensland Vedic Cultural Centre
[2022] QCATA 174
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- Unreported Judgment
- Prasad v Queensland Vedic Cultural Centre[2022] QCATA 174
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Prasad v Queensland Vedic Cultural Centre[2022] QCATA 174
Prasad v Queensland Vedic Cultural Centre[2022] QCATA 174
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | Prasad & Anor v Queensland Vedic Cultural Centre & Ors [2022] QCATA 174 |
PARTIES: | lalta prasad |
(applicant) | |
v | |
queensland vedic cultural centre, sukhvir singh and sukarm pal singh | |
(respondents) | |
APPLICATION NO: | APL318-21 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 15 November 2022 |
HEARING DATE: | 8 November 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDER: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – action for debt – where moneys advanced to voluntary association – whether advance is a loan or a gift – where tribunal rejected allegation of loan – where evidence of loan unsatisfactory – where discrepancies between copy tendered and original document – where applicant for leave failed to appear at hearing of his leave application – where application for leave dismissed Corporations Act 2001 s 126, s 127 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 93, s 97, s 142 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) rule 78 Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Holland v The Queen (2005) 154 A Crim R 376 Lemongrove Services Pty Ltd t/a Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 R v Erasmus [2006] QCA 245 The Pot Man Pty Ltd v Reoch [2011] QCATA 318 |
APPEARANCES & REPRESENTATION: | Applicant: No appearance Respondents: S P Singh |
REASONS FOR DECISION
Introduction
- [1]Loan or gift? That is the question.
- [2]On or about 25 February 2018 the present applicant (‘Prasad’) advanced the sum of $10,000 to the respondent (‘Vedic’).
- [3]
Action commenced and decided
- [4]On 17 July 2020 Prasad commenced these proceedings against Vedic and others, alleging that –
I provided loan to [Vedic] on 25.2.2018 for two years interest free. Company was to return our monies on 25.2.20. They have not done that and when email sent they making excuses [sic].
- [5]The Tribunal heard and decided the matter on 6 October 2021. It rejected Prasad’s evidence of a loan agreement and dismissed his application.
Leave to appeal?
- [6]
- [7]By notice dated 18 October 2022 the registry informed Prasad that his application for leave would be heard on 8 November 2022. It also told him that he was required to attend the hearing in person, and that if he failed to do so ‘the tribunal may make orders in your absence’.
- [8]Prasad does not suggest that this notice failed to reach him in due time.
Applicant’s non-appearance
- [9]However, Prasad did not attend the hearing of his application for leave either in person or by telephone, nor has he offered any explanation for his absence.
- [10]In these circumstances the Tribunal is entitled to finalise these proceedings by dismissing the application for leave forthwith.[5] Nevertheless, without derogating from that conclusion, I shall briefly consider the merits.
The merits
- [11]
[A]ll the original is kept by the originating company which should be with [Vedic]. They don’t give these originals out I don’t think.[8]
- [12]There was no suggestion that Prasad made a serious attempt to obtain the original, or that Vedic, when asked, refused to produce it. Certainly Prasad made no use of the ‘subpoena’ provisions to be found in the QCAT legislation,[9] although the annexure to his application for leave displays a sophisticated approach to legal procedure. However, his argument that ‘if the Adjudicator wanted to see the originals, she should have requested for it well before the meeting’[10] is quite misconceived. It is for parties to prepare their respective cases, not the Tribunal. As a former President of QCAT emphasised:
It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own best interests.[11]
In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences.[12]
- [13]
Document exhibited and original compared
- [14]Indeed, if the Adjudicator had had before her in October 2021 (a) the copy tendered at the trial and (b) the purported original later produced she may well have been interested in several differences between the two documents. For example, the lender’s signature on the document produced in November 2021 appears immediately below the printed words ‘Signed by Lender’. On the copy tendered at the trial the Lender’s signature appears in the middle of the page, clearly divorced from the ‘Signed by Lender’ indicator. Again, while the capital letter ‘S’ on the trial copy is clearly and simply inscribed, the same letter on the version filed in November displays an ‘S’ that is overwritten by a double line. Third, still in the signature section, the capital ‘F’ for ‘February’ is written in freehand on the ‘trial specimen’, while it appears as a block letter on the November version.
Ostensible authority
- [15]No loan having been proved, it is unnecessary to deal at length with the submission that Jatenda Dayo, a director and secretary of Vedic at the material time[15], lacked authority to receive Prasad’s money on the company’s behalf. Section 127 of the Corporations Act deals with formal appointments of an agent, but s 126 recognises implied authority of an individual to act on a company’s behalf.
Limits of application for leave
- [16]The proper object of an application for leave is not to conduct a re-trial, but merely to see whether the subject decision contains a reasonably arguable error of law, or some ‘glaring improbability’[16] that significantly affected the result.[17] Questions of fact and credit are the prerogative of a trial judge; that is his function[18]. It is not an error of law to decide against one party, or to give evidence less weight than the party thinks it should receive. Here the Adjudicator acted strictly, but not incorrectly, in requiring production of the original document, absent a satisfactory explanation of the absence of the original.
Conclusion
- [17]I see no appellable error in the primary decision, and none has been demonstrated. The application fails on the merits, and in any event is dismissed for the applicant’s failure to attend the hearing of the appeal.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1] Transcript of hearing 6 October 2021 (‘T’) page 8 line 5 (Singh).
[2] T page 5 line 39 (Singh).
[3] Directions given on 28 November 2021 and 3 March 2020 and the notice of hearing issued on 18 October 2021 raise no issue about the timing of the application for leave.
[4] As required by the QCAT Act s 142(3).
[5] See Notice of hearing 18 October 2021, Note 1; QCAT Act s 93.
[6] T page 24 lines 10-12.
[7] T page 17 line 40.
[8] T page 18 lines 17-19.
[9] QCAT Act s 97, QCAT Rules s 78.
[10] Annexure to application for leave filed 18.11.21, 2nd paragraph numbered 1.
[11] The Pot Man Pty Ltd v Reoch [2011] QCATA 318 at [9] per Wilson P.
[12] Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [12].
[13] As shown by the registry received’ stamp thereon.
[14] Holland v The Queen (2005) 154 A Crim R 376; R v Erasmus [2006] QCA 245 (leave refused in each case); Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.
[15] T page 6 line 4.
[16] Lemongrove Services Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 at [173]; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-179.
[17] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
[18] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.