Pivovarova v Peter B Michelsen trading as Peter Michelsen Building Service
[2021] QSC 258
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- Unreported Judgment
- Pivovarova v Peter B Michelsen trading as Peter Michelsen Building Service[2021] QSC 258
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Pivovarova v Peter B Michelsen trading as Peter Michelsen Building Service[2021] QSC 258
Pivovarova v Peter B Michelsen trading as Peter Michelsen Building Service[2021] QSC 258
SUPREME COURT OF QUEENSLAND
CITATION: | Pivovarova v Peter B Michelsen trading as Peter Michelsen Building Service [2021] QSC 258 |
PARTIES: | TATIANA PIVOVAROVA (applicant) v PETER B MICHELSEN trading as PETER MICHELSEN BUILDING SERVIVCE ABN 84 003 506 297 (respondent) |
FILE NO/S: | BS 5730 of 2019 |
DIVISION: | Trial Division |
PROCEEDING: | Civil |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 15 October 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 October 2021 |
JUDGE: | Freeburn J |
ORDERS: |
|
CATCHWORDS: | PARTY TO LITIGATION – CROSS APPLICATION – COST ORDER – Where cost order made against Ms Pivovarova by the Court of Appeal requiring Ms Pivovarova to pay Mr Michelsen’s costs of the application for leave to appeal – Where Ms Pivovarova refused to pay as Mr Michelsen’s company ABN was cancelled by the Australian Tax Office – Whether the proceeding against Mr Michelsen’s company can be categorised as a proceeding against Mr Michelsen – Whether Mr Michelsen is entitled to costs of pursuing Ms Pivovarova for the cost order to be paid by the Court of Appeal. |
COUNSEL: | Both parties were self-represented |
SOLICITORS: | As above |
REASONS
Ms Pivovarova’s Application
- [1]On or about 5 October 2021 the Registry received an application by Ms Pivovarova. The application has a handwritten date on it, 29 September 2021 and was for the following orders:
- (a)The enforcement warrant issued on 26 July 2021 against Tatiana Pivovarova to be set aside under a rule 819(1) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’);
- (a)
- (b)The writ no 721044597 to be removed by Mr Michelson; and
- (c)The respondent pay the costs of the appellant of the application.
- [2]Ms Pivovarova’s application was accompanied by an affidavit sworn by her on 17 September 2021. That affidavit explains the following background.
- [3]On 10 June 2021, Mr Michelsen requested that Ms Pivovarova pay a costs order made by the Court of Appeal which required that Ms Pivovarova pay Mr Michelsen’s costs of an application for leave to appeal fixed in the sum of $15,596. That order also required that Ms Pivovarova pay Mr Michelsen’s costs of the application, including the costs of engaging a process server.
- [4]In July 2021 Ms Pivovarova informed Mr Michelsen that his ABN, which comprises a part of the description in the court heading above, had been cancelled by the Australian Taxation Office on 1 July 2015. Ms Pivovarova contended that, accordingly, Mr Michelsen was not entitled to be paid or to demand the funds which the Court of Appeal had ordered be paid to “Peter B Michelsen trading as Peter Michelsen Building Service ABN 84 003 506 297.”
- [5]On 26 July 2021, the Court of Appeal issued an enforcement warrant on the application of Mr Michelsen. Ms Pivovarova claims that the warrant was issued by Mr Michelsen and not “the Respondent” because of the problem with the cancelled ABN. In fact, of course, the enforcement warrant was issued by the Registrar of the Court, albeit on the application of Mr Michelsen.
- [6]A month later, on 26 August 2021, the warrant/writ was registered over Ms Pivovarova’s property at Brookwater.
- [7]On 13 September 2021 Mr Michelsen requested payment of the funds in accordance with the warrant which, Ms Pivovarova complained “includes the wrong name of the Enforcement Creditor”. On the same day Ms Pivovarova informed the court, presumably the Registry, that the warrant had a clerical error. The court informed Ms Pivovarova that the court would not rectify the error unless Ms Pivovarova filed a Form 9.
- [8]Ms Pivovarova contends that she was unable to comply with the order of the Court of Appeal (by paying the costs) because “the Respondent does not exist from 2015”. Ms Pivovarova has exhibited a search showing that the ABN had been cancelled from 1 July 2015. Ms Pivovarova also made allegations that:
- (a)Mr Michelsen fraudulently and unlawfully used the ABN in court documents in breach of s 23 of the A New Tax System (Australia Business Numbers) Act 1999 (Cth);
- (b)Mr Michelsen misled her and misled the court by not disclosing that the ABN had been cancelled; and
- (c)Mr Michelsen had failed to establish in court that he was entitled to receive the funds ordered to be paid by the Court of Appeal because those funds had been awarded to his business, namely “Peter B Michelsen trading as Peter Michelsen Building Service ABN 84 003 506 297” when in fact that ABN had been cancelled at the time of the court order.
- [9]Ms Pivovarova submits that:
- (a)the warrant was issued with a typographical error and an error of law – (the error being described above);
- (b)the warrant, in name “Peter Michelsen” was issued in the wrong name because the court order had the full description;
- (c)the warrant was issued contrary to the order;
- (d)the full and correct name had been established by QCAT’s decision of 10 June 2015 in Pivovarova v Michelsen [2015] QCATA 73 (some two weeks before the ABN was cancelled);
- (e)Ms Pivovarova was not able to comply with the warrant because of the error referred to above and so she should not be responsible for any interest or costs; and
- (f)the court has made an error of law or clerical error by issuing the warrant on the application of Mr Michelsen, who is not the actual respondent; the legitimate party is as fully described “Peter B Michelsen trading as Peter Michelsen Building Service ABN 84 003 506 297” – an entity which has not existed since July 2015.
- (a)
Merits of Ms Pivovarova’s Application
- [10]For a very long time the rules of court have permitted parties to commence proceedings against a business whose name is registered on the business names register and to do so in the businesses name. The present rule that permits that is UCPR 89. Similarly, the rules have always permitted a person to commence proceedings in their own business name against another person or entity and to do so even if the name is not registered. UCPR 90 permits that.
- [11]For the purposes of those rules the authority given by the rules is for the business to, in its own business name, commence proceedings against a person, or for a business to commence a proceeding in its own business name. Once commenced validly, UCPR 91 provides for notices of intention to defend and UCPR 92 permits amendment to correct the name of the parties. In short, if there is a problem with the name that arises after commencement of the proceeding, it can be corrected.
- [12]As it happens, there is no problem with the description of Mr Michelsen in the court heading, apart from some surplus language that need not be there. This case falls into the same category as McGill DCJ considered in Srbecky v. Bess:[1]
- [13]…in my opinion when a proceeding is brought against “Alan Bess trading as
Ease-Al-Lee Projects” it is a proceeding against “Alan Bess” as an individual rather than a proceeding against whoever happen to be the persons carrying on the business “Ease-Al-Lee Projects”. This is the result indicated by such authorities as exist in this area, as to the effect of an expression of this nature. In W. Hill & Son v. Tannerhill [1944] KB 472, Scott LJ said at p. 475 that, if an individual is sued, adding the words “trading as” followed by a business name is “mere useless and inappropriate surplusage”. Then in J M Glassell & Co Ltd v. Fisk & Anor (1950, unreported, noted in 24 ALJ 524), Sholl J in the Supreme Court of Victoria criticised the identification of a party in a writ in the form “A & B (trading as Y & Co)” when A and B are being sued as a partnership in Victoria. His Honour said that this was not suing a firm in the firm name but was a claim against A and B individually with a confusing and irrelevant addition. The correct designation of the defendant sued as a firm in that State was “Y & Co, a firm”.
- [14]In Jessop v. Barker [1962] NSWR 1439, Nagle J said that the words “trading as Barker Bros and Milliner” in the writ could be considered as mere surplusage. The various authorities are usefully collected in the notes to O. 48A r. 1 in Williams Practice of the Supreme Court of Victoria (1973, discontinued 1991) vol. 2, where the reference to a trading name is described as “a confusing and irrelevant addition”. I respectfully agree.
- [13]In this case, there is no dispute that the business name Peter Michelsen Building Service was in fact a business operated by Mr Michelsen as a sole trader. The description “Peter B Michelsen trading as Peter Michelsen Building Service ABN 84 003 506 297” plainly refers to Mr Michelsen. The business is not a separate entity and does not have a separate existence. There is no other party that could possibly be referred to. The words “trading as Peter Michelsen Building Service ABN 84 003 506 297” are, to apply the language of McGill DCJ, and the cases quoted by His Honour, mere surplusage.
- [14]Consequently, Ms Pivovarova’s points about the error of law or clerical error are not valid points. The same person was always in contemplation. Indeed, as I understood her argument, not even Ms Pivovarova was confused or in doubt about who she was litigating against.
- [15]It follows that Ms Pivovarova’s application must be refused. There is no basis for setting aside the warrant or for removing the writ.
- [16]I was informed that the costs ordered to be paid by the Court of Appeal have now been paid. If that is the case the parties will, presumably, not be further litigating about this aspect.
- [17]There is, however, a cross-application by Mr Michelsen against Ms Pivovarova.
Mr Michelsen’s Cross-Application
- [18]First, Mr Michelsen sought to be represented by his son-in-law, Mr Neil McGrath. During the hearing I granted leave for Mr Michelsen to be represented by Mr McGrath at the hearing (and only that hearing).
- [19]Second, Mr Michelsen’s substantive application was for the costs of pursuing Ms Pivovarova for the costs ordered to be paid by the Court of Appeal.
- [20]In the course of argument, I asked Mr McGrath what costs Mr Michelsen had incurred given that he did not appear to have a solicitor acting for him. Mr McGrath said he had invoices. Those invoices were subsequently provided to me through my associate. Ms Pivovarova has objected to the court receiving those invoices as evidence. That objection is dealt with below.
- [21]To understand this part of the dispute between the parties it is necessary to explain the content of the invoices. The invoices are from “Results Legal” and are addressed to Mr Michelsen. One invoice, No. 210897, is dated 30 August 2021 and merely says “professional fees - $260” and “disbursements - $197” (a subtotal of $483 including GST). The other Results Legal invoice, No. 210897, is dated 29 September 2021 and merely notes “professional fees - $624” and “disbursements - $227” (a subtotal of $916.40 including GST). The total of both bills is $1,399.40.
- [22]To confuse matters Mr Michelsen has also supplied copies of two Suncorp transfer of funds notices recording payments to Results Legal of $1,014.69 on 11 August 2021 (i.e. a transfer of funds before the first of the two invoices) and $582.31 on 26 September 2021 (a transfer of funds before the second invoice – but after the first). The amounts paid do not coincide with the amounts in either invoice.
- [23]A further complication is that the first invoice has noted, at the top of the page “Outstanding amount of $197.00 to be transferred from Trust Account for Discharge of Writ”. Presumably that means that a credit in the trust account is to be used as a part payment costs of issuing the writ.
- [24]Consequently, the court is not in a position to know what legal work was involved in each invoice, and whether the work was reasonable and was legal work which the court is entitled to order Ms Pivovarova to pay.
- [25]There is a further problem. The warrant includes on its face the note: “costs of preparing writ - $467.40”. That, it is assumed, is a claim that is levied for the professional costs of preparing the writ, rather than filing fees. In other words, the execution procedure includes its own summary costs recovery process.
- [26]Thus, it is impossible to assess what legal costs are properly recoverable, or on what basis, let alone what costs are part of the Results Legal bills, and which of the costs claimed by Results Legal are comprehended by the summary costs levied on the warrant. It is doubtful that Mr Michelsen is entitled to claim costs beyond those specified on the warrant, and if he was entitled to an order for those further costs, the legal basis and reasons for an order for those additional costs has not been explained.
- [27]In the circumstances, it seems to me that in the absence of an affidavit or other evidence which both explains and attests to the invoices, the court is not in a position to accept the invoices as evidence of anything.
- [28]As mentioned, Ms Pivovarova objected to the court receiving the invoices because they were received after the hearing and she has not had an opportunity to respond. It is unnecessary to deal with that objection. In my view the invoices are not attested, and are not explained, and are not shown to be relevant. In the circumstances, it is difficult to understand how, even with a good measure of time, Ms Pivovarova could sensibly respond to what is at best two confusing invoices and two confusing bank receipts.
- [29]Third, Mr Michelsen applies for the costs of his recovery of the debt by using the enforcement process. That is a duplication of the earlier claim for costs. For the same reasons the court refuses that application.
- [30]In so far as the court has a discretion to award the costs of the execution process, I decline to exercise that discretion. It seems to me to be inappropriate in the circumstances for the court to award costs of an attempt to secure costs. The requests for orders for costs might never end. At the least, no proper reason was advanced as to why the discretion ought to be exercised, particularly in circumstances where the summary costs are levied on the warrant itself. No explanation has been offered as to why Mr Michelsen is entitled to a costs order beyond those summary costs.
- [31]Consequently, whilst the court allowed Mr McGrath to assist Mr Michelsen, the court declines to make an order as to the costs of the warrant enforcement process.
Objection to Hearing the Cross-Application
- [32]Ms Pivovarova objected to the court hearing Mr Michelsen’s cross-application because that application had been served less than two business days before the hearing date, as required by UCPR 31(5). The cross-application was served on Wednesday 6 October 2021 and was to be heard on Friday 8 October 2021 – at the same time as Ms Pivovarova’s application. Ms Pivovarova did not identify any specific prejudice. Her own application was before the court and so it was appropriate to deal with both applications at the same time. It follows that it was appropriate to abridge time for the hearing of Mr Michelsen’s application under UCPR 7.
- [33]However, as explained, in any event, Mr Michelsen’s cross-application will be dismissed.
Costs of the Applications
- [34]I will hear the parties on how I should dispose of the costs of the application and the cross-application.
Footnotes
[1][2001] QDC 42.