Amos v Walter

Case [2021] QCATA 105

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Amos v Walter [2021] QCATA 105
PARTIES: EDWARD AMOS

(applicant)

v
GLENN WALTER

(respondent)

APPLICATION NO:

APL323-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON: 

23 August 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Small Claims Act 1973 (repealed) - where action between consumer and alleged trader – where transactions between solicitor and costs assessor - whether claim a liquidated claim – whether  costs assessor a trader within meaning of legislation cited – whether costs assessment excepted from category of trade as an occupation not ordinarily regarded as being within the field of trade or commerce – where costs assessor not engaged in trade

Civil Proceedings Act 2011 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 271, 3rd Schedule
Small Claims Tribunal Act 1973 (Qld) (repealed) s 4(1), s 4(2)

Uniform Civil Procedure Rules 1999 (Qld) rr 678-743S

Alexander v Ajax Insurance Co Ltd [1956] VLR 436

Amos v Walter [2020] QCAT 360

Aquilar v Egnalig [2014] QCATA 219

Balabel v Air India [1988] Ch 317

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215

Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1
Carr v Inland Revenue Commissioners [1944] 2 All ER 163

Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646

Edward Amos v Monsour Legal Costs Pty Ltd [2006] QDC 485
Gall & Anor v Lakatoi Pty Ltd (t/a Maritime Solutions Most Thing Nautical [2014] QCAT 557
Grommen v Hawes [2018] QCATA 49
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Public Transport Ticketing Corporation v Integrated Transit Solutions Ltd [2011] NSWSC 453
Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

Szintseva v Berowra Mansions Periodontal Specialist Centre [2014] QCATA 249

W (an infant), In Re [1971] AC 682

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)

REASONS FOR DECISION

Background

  1. As long ago as May 2009 the applicant solicitor (`Amos’) complained to the former Small Claims Tribunal[1] that the respondent (`Walter’) had grossly overcharged him for services as a legal costs assessor.

    [1]Established by the Small Claims Tribunal Act 1973 (Qld) (repealed) (`the SCT’) and subsequently merged in QCAT.

  2. While Walter delivered bills for a total of $3,650. Amos, equipped with affidavits of three other solicitors, claimed a refund of $2,462.50.

  3. This was not Amos’ first clash of arms with cost assessors. The Adjudicator succinctly describes a chequered history that need not now be retraced.[2]

    [2]A curious reader may refer to Amos v Monsour Legal Costs Pty…

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Details
AGLC
Amos v Walter [2021] QCATA 105
Case
[2021] QCATA 105
Decision Date

CaseChat Overview and Summary

In the case of Amos v Walter, the parties were engaged in a legal dispute concerning a claim for damages. The matter was initially heard by the Small Claims Tribunal (SCT), which was later merged into the Queensland Civil and Administrative Tribunal (QCAT). The primary issue was whether the claim made by Amos against Walter was a liquidated debt or if Walter was a trader within the meaning of the Small Claims Tribunal Act 1973. The case was dismissed on two jurisdictional grounds by the Adjudicator. The first was that the claim was not a debt or liquidated money claim, as it depended on the opinions of expert witnesses and was not crystallised in a judicial order or an agreed price for services. The second issue was that Walter was not considered a trader under the Act, as he was not engaged in a business of supplying goods or providing services of a similar nature.

The court examined the definition of a trader under the SCT Act and its modern equivalent in the QCAT Act. The legislation provided that a trader was a person who in the field of trade or commerce carried on a business of supplying goods or providing services or who regularly held themselves out as ready to supply goods or to provide services of a similar nature. The court concluded that Walter did not fit within this definition, as he was not engaged in a trade or business in the field of commerce. The Adjudicator held that the application of the exception to the definition of 'trader' in section 4(2) of the SCT Act was the pivotal issue in this case.

In light of the above, the application for leave to appeal was dismissed. The court held that the claim was not a liquidated debt and that Walter was not a trader within the meaning of the legislation. The dismissal of the appeal meant that the decision of the QCAT tribunal stood, and Amos' claim against Walter was not proceeded with further.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 9 July 2009[3] the SCT dismissed the subject claim for want of jurisdiction. However, a few weeks later a rehearing was granted.[4][3]The SCT was merged in QCAT on 1 December 2009.[4]Letter SCT to Amos 29 July 2009.The primary decision In December 2009 the matter formally joined the list of cases for trial in the new QCAT tribunal.[5] There it lay dormant for years. Finally, in September 2020, it was closely examined by the learned Adjudicator, who dismissed it on two jurisdictional grounds:(i) it is not a claim for a debt or liquidated money claim; and(ii) the respondent Walter is not a trader within the meaning of section 4(2) of the Small Claims Tribunal Act 1973.[6][5]In fact the SCT file was mislaid in Magistrates Court records, and did not reach QCAT until 12 May 2020: Primary decision (`PD’) [45].[6]Amos v Walter [2020] QCAT 360 at [124].A liquidated claim? I respectfully agree that the amount in dispute is not a liquidated claim.[7] As it stands, it is based on opinions of Amos’ expert witnesses. It is not crystallised in a judicial order, or in the form of an agreed price for services. Nor is it ascertainable by a simple mathematical calculation.[8] Until a judicial authority adopts, modifies or rejects the claim it is not liquidated. An action in which the amount to be recovered depends upon a judicial determination so that `no one can say positively beforehand whether the plaintiff will recover a farthing, or forty shillings or a hundred pounds’[9] is an unliquidated claim.[10] [7]See PD [120].[8]Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142 per Knox CJ and Starke J; Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [11].[9]Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [12], quoting with approval Odgers Pleading and Practice 5th ed, p 41; Alexander v Ajax Insurance Co Ltd [1956] VLR 436.[10]This point is encapsulated in PD [120]. I reject the submission that Amos’ present claim is liquidated.A transaction with a `trader’? The SCT had[11], and QCAT now has[12] jurisdiction, subject to monetary limits, to determine disputes between consumers and traders. Amos invokes that jurisdiction; Walter contends that it is unavailable because he (Walter) is not relevantly a trader.[11]Definition of `small claim’ SCT s 4(1).[12]QCAT Act s 271(3)(b). In his defence Walter relies on the exception to the definition of `trader’ in section 4(2) of the SCT Act (reproduced in Schedule 3 of the QCAT Act.) In the Adjudicator’s words the application of that subsection is the `gravamen’ or the `pivotal issue’ in this case.[13][13]PD [70] and [93]-[94].The legislation Materially section 4(1) of the SCT Act and its modern equivalent provide[14]:... trader means a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who regularly holds himself or herself out as ready to supply goods or to provide services of a similar nature ...[14]See now QCAT Act Schedule 3, definition of `trader’.

Ratio Decidendi

Legal Principle Established

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