Cairns Bowls Club Inc v Dangan Pty Ltd - [2023] QCATA 15

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Cairns Bowls Club Inc v Dangan Pty Ltd [2023] QCATA 15

PARTIES:

CAIRNS BOWLS CLUB INC

(Applicant)

v

DANGAN PTY LTD

(Respondent)

APPLICATION NO/S:

APL238-20

ORIGINATING APPLICATION NO/S:

MCDO8/20 (Cairns)

MATTER TYPE:

Appeals

DELIVERED ON:

6 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     The Application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt – where the Applicant alleged and sought compensation for the Respondent’s disposal of the Applicant’s chattels – whether the matter fell into the definition of a “minor civil dispute” pursuant to the Queensland Civil and Administrative Tribunal Act 2009 – whether the claim was to recover a debt or liquidated demand of money – where the application for leave is dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 142(3)(a)(i), s 142(3)(b), Sch 3 (definition of “minor civil dispute”)

Pickering v McArthur [2005] QCA 294, cited

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

This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt matter.
On 16 July 2020, Acting Magistrate Warrington, sitting as the Tribunal Member at first instance, made orders dismissing the Applicant’s claim for $13,620 and referring another part of its claim for $440 to mediation.
On 12 August 2020, the Applicant filed the Application for leave to appeal. I became a Judicial Sessional Member of this Tribunal in June 2022. Upon my appointment, I was given many of these outstanding applications for appeal to determine on the papers. I have since then, at the same time as running my private practice as a barrister and mediator, been working through the matters I have been given the responsibility to determine. I expect the delay in the determination of this matter between filing and its delivery to me to determine is attributable to the scant resources that the Tribunal has at its disposal. I regret the time it has taken the Tribunal to deliver this decision, most particularly the months since the file was given to me to determine.
SOME FACTUAL BACKGROUND
The Applicant club leased a bowling green situated on the property of another sporting club in Cairns. The other sporting club sold the property, subject to the Applicant’s leasehold right, to the Respondent company. The Respondent company intended to carry out some substantial redevelopment works to a building on the property. The Applicant alleges that the Respondent gave it notice to remove certain chattels that the Applicant owned from the property. Those chattels were located in a shed, away from the building that was to be redeveloped.
The Applicant alleges that it made numerous attempts to retrieve and remove those chattels from the property, but that the Respondent did not co-operate in permitting it access to do so. Before the chattels could be retrieved and removed, the Applicant alleges that the Respondent told them that because the chattels had been considered “abandoned”, they were disposed of by the Respondent.
The Applicant filed its Application claiming the sum of $13,620 for the loss of those items. It appears the Applicant asserts that is what it would cost to replace those chattels.
THE DECISION OF THE TRIBUNAL MEMBER AT FIRST INSTANCE
The Acting Magistrate sitting as the Tribunal Member at first instance called for and considered submissions as to whether or not the Tribunal had jurisdiction to determine the Applicant’s claim. Her Honour was particularly interested in determining whether or not the matter was “a claim to recover a debt or liquidated demand of money of up to the prescribed amount”.[1] The prescribed amount, of course, is $25,000. The matter clearly does not fall within one of the other paragraphs or sub-paragraphs of the definition of “minor civil dispute” so if it is not a claim to recover a debt or liquated demand of money, then the Tribunal has no jurisdiction in its minor civil dispute jurisdiction conferred by section 11 of the QCAT Act.
[1] Paragraph (a) in the definition of “minor civil dispute” contained in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
Her Honour observed that the Applicant is claiming compensation for the value of goods disposed of by the Respondent. She went on:-
The amount claimed requires an assessment of the loss and damages and I therefore find that it is not a claim for a debt or liquidated demand of money.
THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL
The Applicant lodged an Application for Leave to Appeal against her Honour’s decision.
Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[2] Leave to appeal is also required where an appeal is in relation to questions of fact and/or mixed fact and law.[3] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[4]
[2] QCAT Act, s 142(3)(a)(i).
[3] QCAT Act, s 142(3)(b).
[4] Pickering v McArthur [2005] QCA 294.
MY DETERMINATION
Whether or not a claim is for a debt or liquidated demand of money is a question that this Tribunal has had to decide countless times. There is no statutory definition of the term “debt or liquidated demand of money” in the QCAT Act.
For the Applicant, it is argued that because photographs of the chattels were provided and of the prices associated with the purchase of replacements, the Tribunal was given a “prescribed amount for the claim”. With respect to those representing the Applicant, it is not as simple as that. Those amounts are not set down in a schedule somewhere in a contractual agreement between the Applicant and the Respondent. They are not set down in a table or scale of amounts to be awarded for the cost of replacing certain items. Just because the Applicant says these are the chattels we owned that were disposed of and this is what it will cost to pay for replacements, does not make the amount claimed a “debt or liquidated demand”.
The Respondent company could very well argue that some or all of the chattels were old and therefore not worth as much as is claimed to replace them and that, therefore, the proper amount of compensation for their disposal, if proven to be wrongful, is not the new replacement cost. Such arguments would not necessarily be illegitimate. So, the determination of the quantum of the loss, if it is found appropriate to hold the Respondent legally responsible for that loss, is a matter that would have to be done by considering the evidence and properly assessing the loss. It is not a matter that could simply and necessarily be done in some formulaic way. There is room for argument as to the quantum even if liability is established. Accordingly, it is not a claim for a “debt or liquidated demand of money”.
It follows that I respectfully consider her Honour, the Acting Magistrate sitting as the Tribunal Member at first instance, was correct in her determination. As such, I dismiss the Application for leave to appeal.