Queensland Vedic Cultural Centre Pty Ltd v Lal
[2022] QCATA 50
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- Unreported Judgment
- Queensland Vedic Cultural Centre Pty Ltd v Lal[2022] QCATA 50
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Queensland Vedic Cultural Centre Pty Ltd v Lal[2022] QCATA 50
Queensland Vedic Cultural Centre Pty Ltd v Lal[2022] QCATA 50
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50 |
PARTIES: | Queensland vedic cultural centre pty ltd (appellant) v Yashwant Lal (respondent) |
APPLICATION NO/S: | APL215-21 |
ORIGINATING APPLICATION NO/S: | MCDO 60529/20 (Brisbane) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 April 2022 |
HEARING DATE: | 8 April 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT THE HEARING – WHEN ADMISSIBLE – in the light of the reopening provisions applying in the tribunal, the principles to apply in an application to admit additional evidence – whether evidence not available at the hearing should be admitted APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – where payments of $5,000 and $1,000 were made to a corporation by an applicant in a minor civil dispute claim – where an Adjudicator accepted that the payments were not donations but should be repaid – whether appeal could succeed on various grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138, s 138A, s 146, s 147 CDJ v VAJ (1998) 197 CLR 182 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Heyman v Darwins Ltd [1942] AC 356 Mickelberg v R (1989) 167 CLR 259 Mulholland v Mitchell [1971] AC 666 |
APPEARANCES & REPRESENTATION: | |
Appellant: | Sukarm Pal Singh, director of Queensland Vedic Cultural Centre Pty Ltd |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]In this appeal, Queensland Vedic Cultural Centre Pty Ltd (QVCC) say that the tribunal’s Adjudicator was wrong to order that it should pay $6,000 to Yashwant Lal, being $1,000 which he had paid for a share in QVCC which had not materialised, and $5,000 which he had loaned to QVCC interest free, but which had not been repaid.
- [2]In his claim for $1,000 Mr Lal said that on 9 August 2014 he ‘purchased one share in’ QVCC and this had not been allocated despite reminder emails. In support of the claim he relied on a receipt from QVCC dated 9 August 2014 and a written share agreement dated 10 November 2014 signed by the then director and secretary of QVCC, Jitendra Deo, and signed by Mr Lal, and witnessed. The agreement stated that the share certificate would be issued when the bank (which had provided a loan) released the director guarantors to the loan and that this would happen after two years of financial reporting.
- [3]In his claim for $5,000 Mr Lal said that on 24 April 2018 he lent $5,000 to QVCC. Repayment was due on 24 April 2020, and despite letters of demand it had not been repaid. In support of the claim he relied on a loan agreement which appeared to be signed by Mr Deo in 2018 but which was not signed by anyone else. It stated that Mr and Mrs Lal promises to loan $5,000 to QVCC and this would be repaid after two years without payment of interest.
- [4]A formal response to the claim was made by QVCC. The response was prepared by Dr Sukhvir Singh who was appointed director of QVCC on 20 September 2018, that is after the payments made by Mr Lal. The response denied that any sums were due. It was said that the tribunal had no jurisdiction because this was a ‘corporate governance related issue’. It was said that the $6,000 was made by Mr Lal as a donation to the company, the company having been established to own and operate premises for the not for profit religious, cultural and educational organisation, Arya Partinidhi Sabha of Queensland (APSQ) Inc.
- [5]The response queried the authenticity of the documents relied on by Mr Lal, and it was said that Mr Deo had no authority to enter into the share agreement or the loan agreement on behalf of the company.
- [6]At the hearing before the Adjudicator the parties presented their documents and argued the points as appeared from the claim and from the response to the claim. The Adjudicator noted that there was no dispute that Mr Lal had paid the two amounts – $1,000 and $5,000 – to QVCC.
- [7]The Adjudicator decided that at the time the two payments were made by Mr Lal, Mr Deo had actual[1] or ostensible authority[2] to bind QVCC in relation to the share agreement and the loan agreement. The Adjudicator also decided that as director and secretary of QVCC Mr Deo had authority to accept on behalf of QVCC the payment of $1,000 for the share and to accept the loan of $5,000.[3]
- [8]
- [9]On the question of whether the payments were donations, the Adjudicator found there was nothing persuasive to show on the balance of probabilities they were donations.[6] This was largely because the evidence about this given by Dr Singh was second-hand information not being a party to the transactions.[7]
Grounds of Appeal
- [10]In this appeal the main points made are:[8]
- (a)The Appeal Tribunal ought to receive additional evidence showing that Mr Lal has been inconsistent with his description of the payments he made to QVCC and which further undermines the authenticity of the documentation he relies on.
- (b)There were breaches of natural justice in that:
- The Adjudicator wrongly took into account evidence given by Mr Lal about the contents of QVCC’s financial statements without providing copies to QVCC.
- The tribunal made a decision just prior to the hearing of which QVCC was unaware.
- Arya Partinidhi Sabha of Queensland (APSQ) Inc should have been party to the claim because it was a party to the share agreement.
- The Adjudicator did not consider all the evidence put forward by QVCC.
- (c)The share agreement was a matter of corporate law and outside the jurisdiction of the tribunal.
- (d)The share agreement was not properly executed by the company in the manner required by section 127 of the Corporations Act 2001 (Cth). The tribunal should act consistently with a prior decision in another QCAT application that section 127 applies to a share agreement of this type.
- (e)In the light of the provisions of the Corporations Act, it was wrong for the Adjudicator to find that Mr Deo had ostensible authority to bind the QVCC.
- (f)The loan agreement should not have been accepted because it was not signed by Mr Lal.
- (g)In the absence of a notice of termination of the share agreement Mr Lal was not entitled to return of the $1,000.
- (h)The Adjudicator made a factual error in deciding that the loan agreement was signed in 2018.
- (a)
Grounds (b) (natural justice) and (c) (jurisdiction)
- [11]The natural justice grounds can be dealt with briefly. As for the evidence given by Mr Lal about QVCC’s financial statements, the Adjudicator did not rely on this in the decision. This did not affect the outcome.
- [12]It is true there was tribunal decision made just prior to the hearing but it was a decision about whether a number of similar claims should be heard together (which was refused). Again this did not affect the outcome and there was no need for QVCC to be informed about this.
- [13]On the question of the lack of participation of APSQ in the hearing, it is true that APSQ was a party to the written share agreement, and the usual rule would be that all contracting parties ought to be joined. However, the evidence showed that the $1,000 was paid to QVCC,[9] and it was that company and not APSQ or anyone else, which would be obliged to make the refund to Mr Lal. This means the validity of the decision is not affected by APSQ’s absence as a party. As a natural justice issue, this matter was not raised at the hearing so it is difficult to rely on it on appeal. In any case it is difficult to see that joining APSQ would have been justified under section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) (Joining Parties) even if it had been raised.
- [14]Finally, there is nothing to show that the Adjudicator did not consider all the evidence put forward by QVCC. To the contrary, the Adjudicator dealt with all the relevant matters raised by QVCC.
- [15]In the circumstances the natural justice grounds in ground (b) are bound to fail.
- [16]In ground (c) it is incorrect to say that the tribunal did not have jurisdiction over the share agreement. It is true that the tribunal would not have had jurisdiction to make an order for specific performance of the share agreement but this was not what Mr Lal was seeking. The tribunal certainly had jurisdiction to order a refund, which would be a debt arising because the share agreement had not been performed.
Ground (d) and (e) (questions of authority and execution)
- [17]It is not disputed that at the time of the loan and share agreements Mr Deo was a director of QVCC and was its company secretary. In this appeal QVCC puts forward many arguments about whether or not Mr Deo had actual or ostensible authority to make the agreements as the Adjudicator found, and it makes submissions about the statutory assumptions provided in sections 129(2) and (3) of the Corporations Act where a person has dealings with a person who appears on the ASIC record as a director or company secretary of the company, or who has been held out by the company as an officer or agent of the company.
- [18]Ultimately however, the points made on the appeal about authority do not affect the Adjudicator’s decision because as pointed out by Mr Lal, if Mr Deo’s authority was insufficient to bind the company to the contracts made, this means that he is entitled to return of his payments anyway, because not being donations QVCC is not entitled to keep the payments.
- [19]This meant that any decision made by the Adjudicator about whether or not Mr Deo’s actual or ostensible authority extended to making binding loan or share agreements on QVCC’s behalf were not relevant to the final decision made. Mr Lal was not seeking to enforce the loan agreement by for example charging QVCC interest on the loan, and he was not seeking to enforce the share agreement in any way. The Adjudicator’s finding that Mr Deo had authority on behalf of the company to accept and receive the money paid by Mr Lal was sufficient to establish Mr Lal’s claim for repayment of that money, upon his showing that they were not donations and they should be repaid.
- [20]As for the point that the loan and share agreement contracts should have been executed in accordance with section 127 of the Corporations Act, that is to say by 2 directors of the company (because it was not a company with a sole director), this submission is incorrect because there was no formality required for either of the contracts. In the absence of any requirement to the contrary in the constitution of the company, they could be made orally or by ordinary written agreement.
Ground (f) (loan agreement not signed by Mr Lal) and ground (h) (factual error about signature in 2018)
- [21]Mr Lal informed the Adjudicator at the hearing that his payments of $5,000 and $1,000 were not documented at the time. The documents were created later, although they did reflect what had been intended by the payments.[10] In those circumstances, it is irrelevant that Mr Lal did not sign the loan document. The relevant issue for the loan was whether, when Mr Lal paid the $5,000, he intended it to be a donation or a loan.
- [22]It is said that the Adjudicator made a factual error in finding that the loan document was signed by Mr Deo in 2018. What the Adjudicator actually said was that the document came into existence in 2018,[11] which is a different thing. But as a document which was only relied on by Mr Lal as evidencing a prior oral agreement it was irrelevant exactly when it was signed by Mr Deo. The relevant issue was whether Mr Lal was right that it reflected what he had intended by the payment of $5,000 and the Adjudicator accepted that it did do so.
Ground (g) (no notice of termination of the share agreement)
- [23]This is a new point made on appeal. Since it was not raised before the Adjudicator I have a discretion whether or not to consider it. I do not think I should consider it because in the absence of any evidence at the hearing that the $1,000 was a donation, QVCC’s position was that Mr Deo had no authority to make the share agreement on behalf of the company. If this is right then Mr Lal would be entitled to the return of the $1,000 anyway.
- [24]Even if the share agreement was valid, the time for providing the share had clearly long passed (being some four years prior to the hearing) and this delay was clearly so unreasonable that it amounted to a refusal by QVCC to perform the contract,[12] in other words a repudiation of the contract. In those circumstances Mr Lal had a right to accept the repudiation and to ask for a refund.[13] Acceptance of repudiation can be done by bringing the proceedings themselves in a case where this evinces an intention no longer to be bound by the contract.[14]
Ground (a) (additional evidence)
- [25]The evidence which is relied on here came into QVCC’s possession in about January 2022 because it was included in documents disclosed in other proceedings. There is an argument that such disclosure ought not to be used for purposes other than the proceedings in which the documents were disclosed, but it seems to me that there is a rather more straightforward answer whether they should be admitted in this appeal.
- [26]It is helpful to review when such additional evidence may be admitted in the Appeal Tribunal. It has consistently been the approach of the Appeal Tribunal when hearing appeals that an appeal will only be allowed when an error by the tribunal is identified, which if corrected will alter the final decision made by the tribunal. One reason for this is an appeal is not an opportunity to try to get a second opinion having lost the case. To allow that would be unfair to the other party and also would be an inefficient way to resolve disputes. Another reason is the importance of finality in litigation because parties need to know where they stand.
- [27]One exception to this however, is the ability of the Appeal Tribunal to receive and consider ‘additional evidence’. If the additional evidence would lead the tribunal to a different conclusion then the appeal would be allowed without finding an error by the tribunal.
- [28]To consider when such additional evidence may be admitted, it is necessary consider the relevant statutory provisions which are in sections 146 and 147 of the QCAT Act:
146 Deciding appeal on question of law only
In deciding an appeal against a decision on a question of law only, the appeal tribunal may—
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
- (i)with or without the hearing of additional evidence as directed by the appeal tribunal; and
- (ii)with the other directions the appeal tribunal considers appropriate; or
- (d)make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
147 Deciding appeal on question of fact or mixed law and fact
- (1)This section applies to an appeal before the appeal tribunal against a decision on a question of fact only or a question of mixed law and fact.
- (2)The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
- (3)In deciding the appeal, the appeal tribunal may—
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.
- [29]Section 147(3)(c) was added by amendment on as from 1 September 2019 for this stated reason:[15]
Clause 36 amends section 147 (Deciding appeal on question of fact or mixed law and fact) to enable the appeal tribunal to set aside a decision on a question of fact only or a question of mixed law and fact and return the matter to the tribunal or other entity who made the decision for reconsideration.
- [30]As can be seen from these provisions, in an appeal solely on a question of law then the Appeal Tribunal can admit additional evidence under section 146(c)(i) and in an appeal on question of fact or mixed law and fact then it can do so under section 147(2).
- [31]The reason why the Appeal Tribunal is able to admit additional evidence is to avoid a miscarriage of justice.[16] It is well understood however, that if the evidence would have been available with reasonable diligence at the time of the hearing then there is no miscarriage of justice for it not to be considered.[17]
- [32]And it also understood that where an assessment at the hearing has been made of uncertain future events, such as an assessment of future economic loss, then that assessment will generally stand, and no evidence about what actually happened after the hearing will be permitted. As was said by Lord Wilberforce in in Mulholland v Mitchell (English House of Lords):[18]
I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too it may be expected that the Courts will allow fresh evidence where to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court.
citations omitted
- [33]Although these principles are not stated in the statutory provisions governing appeals to the Appeal Tribunal, they are set out in the statutory provision governing applications to reopen. Section 138 of the QCAT Act only permits an application to reopen where there is a reopening ground. ‘Reopening ground’ is defined in Schedule 3 (dictionary) as follows:
reopening ground, for a party to a proceeding, means—
- (a)the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
- (b)the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
- [34]Section 139(4) limits the discretion to reopen:
- (4)The tribunal may grant the application only if the tribunal considers—
- (a)a reopening ground exists for the applicant party; and
- (b)the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
- [35]It can be seen that these reopening provisions closely reflect the common law principles which are relevant to appeals as set out above. Paragraph (b) of the definition of reopening ground reflects the requirement that the evidence was not available with reasonable diligence at the time of the hearing and admission of the additional evidence is required to avoid a miscarriage of justice. Section 139(4)(b) reflect the requirement that a reopening will ‘effectively or conveniently’ deal with the reopening ground. An example of where it is probably not effective or convenient to do that is where the tribunal has made an assessment of uncertain future events as explained in Mulholland v Mitchell.
- [36]The affinity of the appeal and reopening provisions can also be seen from the way they interact in the QCAT legislation. An application to reopen and an application to appeal or for leave to appeal cannot both continue at the same time.[19]
- [37]It is also provided that the Appeal Tribunal can convert an application to appeal or for leave to appeal into an application to reopen if it discloses a reopening ground more effectively or conveniently dealt with in this way.[20] In practice, appeals are often converted to reopening applications in this way – but inevitably some appeals which could have been converted will be missed, or there may be appeals like this one which include other grounds of appeal which cannot be dealt with as an application to reopen.
- [38]It is clear that for the sake of consistency, when hearing an appeal in which there is an application to admit additional evidence, the Appeal Tribunal is guided by the statutory provisions applying to reopening applications.
- [39]When considering whether the Appeal Tribunal can effectively or conveniently deal with the admission of the additional evidence, it would be noted that the Appeal Tribunal may either hear the evidence and allow the appeal on that basis, amending the decision or substituting its own,[21] or it can remit the matter to the tribunal for consideration.[22] In deciding what to do, the Appeal Tribunal would recognise that the appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts,[23] so it will often be the case that if the additional evidence is admitted it would result in remission of the matter back to the tribunal for rehearing.
- [40]In an appeal like this one therefore, where the additional evidence was not in QVCC’s possession at the time of the hearing (and for the sake of argument, was not available to QVCC with reasonable diligence at that time), the question is whether it is ‘significant’ and QVCC would suffer a ‘substantial injustice’ if it were not admitted, and that admitting the evidence is an effective or convenient way to deal with the additional evidence.
- [41]In order to answer these questions it is necessary to consider the new evidence and how it would have affected the outcome of the hearing if it had been available at the hearing.
- [42]The most important part of the additional evidence relied on is an email sent by Mr Lal on 20 September 2019 to Mr Deo’s lawyers in which he said:
Please be advised that all monies paid as per the attached supporting documents totalling to $8,480 was contribution towards the land building acquired or built by QVCC. They are not to be considered as donations and have not been claimed as donations in my annual tax returns.
The intent at all times was to ensure smooth acquisition of land and construction of buildings of the use by the Vedic Culture members. I retain appropriate share in proportion to my contribution.
- [43]In the appeal hearing it was agreed that the subject matter of the appeal, the $6,000, was encompassed within the $8,480 referred to in this email.
- [44]The email forwarded another email which Mr Lal had sent to H&H Advisory, Solvency Accountants, who I was told at the hearing of this appeal were acting as administrators of the company. That email attached Mr Lal’s proxy form and proof of debt for $8,480.
- [45]I cannot see how these emails assist QVCC because the important issue for the Adjudicator to decide was whether or not Mr Lal’s payments were donations, and in his emails Mr Lal clearly says that they were not. Completing a proof of debt form would be inconsistent with their being donations. It is true that the claim of a share in the property which was purchased was inconsistent with the claim that the payments were repayable unless it was a suggestion that repayment of the loans was supported by a charge on the property. But this claim was also inconsistent with the payments being donations and so ultimately it does not demonstrate that the Adjudicator’s decision was incorrect. Neither party suggested before the Adjudicator, or is suggesting in this appeal, that the payments gave rise to resulting trust. In the circumstances, the emails tend to support Mr Lal’s case rather more than QVCC’s case.
- [46]There are other documents in QVCC’s application to admit additional evidence but they are presented as evidence that Mr Deo orchestrated claims against QVCC by those who had made payments to the company including creating purported loan agreements similar to the one relied on by Mr Lal. It is true that had these documents been available before the Adjudicator they would have supported QVCC’s submissions made about this at the hearing. But I do not think they would have made any difference to the outcome because the important issue for the Adjudicator to decide was whether or not Mr Lal’s payments were donations. If anything, these documents tend to show that they were not donations and so do not assist QVCC.
- [47]In the circumstances it cannot be said that the proposed additional evidence demonstrates that QVCC would suffer a substantial injustice if it were not admitted. I therefore refuse the application to admit additional evidence.
Conclusion
- [48]In these types of appeal, leave to appeal is necessary. Leave to appeal will only be given if the appeal is reasonably arguable or there is some other reason to grant leave. I have refused leave to admit the additional evidence. This means that none of the grounds of appeal are reasonably arguable and there is no other reason to grant leave to appeal so I refuse it. The appeal therefore fails.
Footnotes
[1] Transcript 1-21 line 1.
[2] Transcript 1-19 line 47, 1-20 line 5.
[3] Transcript 1-21 line 2.
[4] Transcript 1-20 line 37.
[5] Transcript 1-20 lines 19 and 35.
[6] Transcript 1-20 line 25.
[7] Transcript 1-20 line 43.
[8] Ground of Appeal in Part C of the application for leave to appeal or appeal, submissions in support filed on 13 September 2021 and an application for leave to rely on fresh evidence received on 1 March 2022, all supplemented by oral submissions made at the appeal hearing on 8 April 2022.
[9] In particular, the receipt dated 8 August 2014.
[10] Transcript 1-15 line 3.
[11] Transcript 1-20 line 20.
[12] As described in Carter on Contract [36-060].
[13] It is not suggested that there was any unsatisfied condition precedent to QVCC’s obligation to provide a share.
[14] Heyman v Darwins Ltd [1942] AC 356, 362 (Viscount Simon LC) (English House of Lords), followed in Australia.
[15] Explanatory note to Queensland Civil and Administrative Tribunal and Other Legislation Amendment Bill 2018 (Qld).
[16] Kirby J in CDJ v VAJ (1998) 197 CLR 182, [186]-8.
[17] Mickelberg v R (1989) 167 CLR 259, Toohey and Gaudron JJ, [24].
[18] [1971] AC 666, 679-80.
[19] Sections 138(5) and 141 of the QCAT Act.
[20] Section 138A of the QCAT Act.
[21] For appeals on a question of law this would be by section 146(a) or (b), and for appeals on question of fact or mixed law and fact by section (3)(a) or (b).
[22] For appeals on a question of law this would be by section 146(c), and for appeals on question of fact or mixed law and fact by section (3)(c).
[23] Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.