C & k Home Investment Pty Ltd ATF v Sye & Anor
[2022] QCATA 61
•3 May 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION
C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 061
PARTIES: C & K HOME INVESTMENT PTY LTD ATF C & K DISCRETIONAL FAMILY TRUST (applicant)
v
DEREK MALCOLM SYE AND ALISA MARY SYE ATF THE SYE FAMILY TRUST (respondents)
APPLICATION NO:
APL293-20
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
3 May 2022
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 – MINOR CIVIL DISPUTE – management agreement – where commission claimed - whether claim liquidated or unliquidated – where primary decision is that tribunal has no jurisdiction – application for leave to appeal - whether jurisdiction exists – where claim not liquidated – where leave to appeal refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143, Schedule Three
Alexander v Ajax Insurance Co Ltd [1956] VLR 436Bonett v The Queen [2013] NSWCCA 234
Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646
Devries v Australian National Railways Commission (1993) 177 CLR 472
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358
Hawkins v Pender Bros Pty Ltd 1990] 1 Qd R 135
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560Orr v Holmes (1948) 76 CLR 632
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98
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
Introduction
The primary tribunal dismissed these proceedings for want of jurisdiction. The original and present applicant (`C & K’) seeks leave to appeal[1] that decision.
[1]As required by s 143(3) of the QCAT Act.
On 23 August 2019 C & K filed Minor Civil Dispute (minor debt) application against the respondents (`the Syes’) claiming $2,977.56 and alleging obscurely that:
The Sye family owes us money for the commissions and management fees from the settlement date 5 July 2019.
For example, if a tenant pays rent for the period of 4/7/19-10/7/19, as our management rights business settlement [illegible] was 5/7/19, we are entitled to the commission management fees from 5/7/19-10/7/19 even though the tenant paid the rent on 4/7/19. I have attached all the supporting documents including our commissions and invoice [illegible] the figure was calculate. The seller has been [illegible] on the commission [illegible] for over 1.5 months. Should you have any questions please feel free to contact me. Also we don’t have their address after settlement. They became not contactable.
This Delphic pleading drew the following response from the Syes:
The dispute is in relation to the incorrect amount being claimed. The correct amount for commissions and management fees sub total $2,974.64 less admin fees and backyard maintenance income of $526.95 total of $2,447.69. Mid stream of sale a goodwill contract price variation adjustment was agreed in order to cover such overlooked incidentals, commissions and income that may arise. The am0unt was $5,000 plus legal costs of $550.
We consider that this amount of $2447.69 has been covered in the Deed of Variation.[2]
[2]Deed bearing date 19 June 2019.
C & K’s minor debt application implied that the debt alleged was a liquidated amount. But the adjudicator characterised it as an unliquidated claim and dismissed the action for want of jurisdiction.[3]
[3]Transcript of hearing 12 August 2020 (`T’) page 4 lines 29-30.
The QCAT Act relevantly[4] defines a minor civil dispute as `a claim to recover a debt or liquidated demand of money of up to the prescribed amount.’[5]
[4]Other clauses of the definition have no application to the present case.
[5]QCAT Act Schedule 3 Dictionary, definition of `minor civil dispute’ clause (a).
A claim is `liquidated’ when it seeks an amount that does not require any exercise of judicial fact-finding or discretion to crystallise it, or to arrive at a definite finding of quantum. If any assessment is needed, it must be by a process of simple mathematical calculation[6], without any input of judicial decision-making[7].
[6]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].
[7]Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 at [79]; 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.
I respectfully agree with the adjudicator’s decision on the jurisdictional issue. By no stretch of logic could this claim be fairly described as liquidated or `easily quantifiable’.[8] It is not a minor civil debt claim within the meaning of the QCAT Act. The amount and calculation of the claim is in dispute.[9] There is a deed of variation to be interpreted.
[8]Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [87].
[9]Response filed 24 September 2019 Part D items 1-3.
The new evidence that C & K seeks to tender at this stage is voluminous and not immune from the challenge set out in the Response. Resolution of that challenge would require judicial intervention. Furthermore, that material is inadmissible, absent any satisfactory demonstration that it was not reasonably available at the time of the trial.[10]
[10]Bonett v The Queen [2013] NSWCCA 234; Hawkins v Pender Bros Pty Ltd 1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641.
The proper purpose of an application for leave to appeal is to see whether there is any reasonable prospect of demonstrating legal error or some `glaring improbability’[11] in reasoning or the conclusion from the facts. That has not been achieved in this case. Consequently leave to appeal must be refused.
[11]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudrom and McHugh JJ.
However, this decision on a jurisdictional point does not extinguish the applicant’s claim, which may, if so desired, be pursued in another jurisdiction.[12]
[12]Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 at [30]; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91 at 195.
ORDER
The application for leave to appeal is dismissed.
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