Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro

[2010] QCATA 65

CITATION: Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65

PARTIES:	Early Group Valuers Pty Ltd (Applicant)
v
Mr Antonino Cavallaro (Respondent)

APPLICATION NUMBER:            APL126 -10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
(Deputy President)

DELIVERED ON:   2 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The appeal is upheld.

3.    The decision in the Minor Civil Dispute Claim 534/10 is set aside.

4.    The application in that matter is dismissed.

CATCHWORDS : 

MINOR CIVIL DISPUTE – CONSUMER DISPUTE – LAND VALUATION REPORT –  JURISDICTION – Queensland Civil and Administrative Tribunal Act 2009, schedule 3, “Trader”, 2(a) – MEANING AND EFFECT – where the respondent engaged the appellant to prepare a valuation report for his residential premises – where the appellant valued the property at less than what the respondent expected – where the respondent refused to reimburse the appellant for the preparation of the valuation report – where the adjudicator ordered that the respondent was not indebted to the appellant – whether the appellant was a “trader” for the purposes of the QCAT Act – whether the Tribunal had jurisdiction to determine the matter – whether error of law

Fair Trading Act 1989 (Qld), s 5

Trade Practices Act 1974 (Cth)

Small Claims Tribunal Act 1973 (Qld), s 4

Small Claims Act 1973 (Vic), s 2

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i), Schedule 3

Valuers Registration Act 1992 (Qld)

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 615, distinguished

Craig v South Australia (1995) 184 CLR 163 Applied

Diskin Chiropractic Health Centre Pty Ltd v Molony& Another(1992) ASC 56-146; BC9200738, distinguished

Fawke v Holloway [1986] VR 11, cited

LT King Pty Ltd & Anor v Besser & Anor [2002] VSC 354, distinguished

Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41 Applied

REASONS FOR DECISION

1. Mr Cavallaro wanted the Department of Main Roads to purchase his property in Macgregor. He needed a property valuation to further his negotiations. He engaged a Certified Practising Valuer, for that purpose.

1. After he had inspected the property, Mr Early met Mr Cavallaro to discuss the likely valuation figure. Although nothing was reduced in writing, Mr Cavallaro was satisfied that Mr Early would value the property at $1,000,000.00. At a later meeting with Mr Cavallaro and his solicitor, Mr Early indicated a probable valuation at $900,000.00. Mr Cavallaro accused Mr Early of reneging on a promise to value the property at a higher figure. Nevertheless, Mr Cavallaro then signed an agreement with Mr Early’s company, Early Group Valuers, engaging him to prepare a valuation.

1. Mr Early prepared a report which valued Mr Cavallaro’s property at $900,000.00. Mr Cavallaro was billed $2,705.11 for the costs associated with the preparation of the report.

1. Mr Cavallaro, dissatisfied with the lower valuation figure did not pay the invoice and applied to QCAT for relief from making the payment. In the absence of Mr Early, the learned adjudicator ordered that Mr Cavallaro was not indebted to Early Group Valuers for the costs of preparing the valuation report.

1. Mr Early seeks leave to appeal that decision. Leave is necessary for a decision arising from a minor civil dispute[1]. Mr Early contends he was denied a fair opportunity to be heard; that the adjudicator gave excessive weight to evidence given by other witnesses; that evidence from his lawyer was necessary; and that his valuation report conformed with his professional obligation to give an independent opinion unaffected by external influences.

   [1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i)

1. It is not necessary to consider those grounds of appeal. There is a more fundamental issue which requires the decision of the learned adjudicator to be set aside. Although this was not raised in the hearing or in submissions on the appeal, the issue determines the matter. QCAT does not have jurisdiction to hear the application brought by Mr Cavallaro. It follows that the learned adjudicator did not have the power to hear the claim or to make any order.

1. The application was filed in the minor civil dispute jurisdiction as a consumer dispute. Relevantly for this case, a ‘minor civil dispute’ includes a claim arising out of a contract between a consumer and trader for relief from payment of money[2].

   [2]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3, definition of minor civil dispute

1. Mr Cavallaro fits the definition of consumer, being an individual for whom services were supplied for a fee or reward[3]. However, Mr Early is not a trader, as that term is defined.

   [3]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3, definition of consumer (b)

1. The relevant aspects of the definition of trader are[4]:

   [4]Queensland Civil and Administrative Tribunal Act 2009 Schedule 3, definition of trader (2)(a)

1.      A trader –

(a)     Means a person who in trade or commerce –

(i)      carries on a business of supplying goods or providing services; or

(ii)     regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and …..

2.      However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services –

(a)     the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; …

(emphasis added)

1. The terms ‘discipline’ and ‘trade or commerce’ are not defined in the Act. 

1. The phrase ‘trade or commerce’ has been broadly interpreted. In Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd[5] , the issue was whether advice provided by a professional consulting engineer fell within the category of trade and commerce under the Trade Practices Act 1974 (Cth) (TPA). French J (as his Honour then was) said:

However, where the conduct of a profession involves the provision of services for reward, then in my opinion, even allowing for widely differing approaches to definition, there is no conceivable attribute of that aspect of professional activity which will take it outside the class of conduct falling within the description “trade or commerce”. This conclusion flows from both the judicial exposition and the particular statutory context of that term.

[5] (1987) 71 ALR 615 at 620

1. The definition of trader in the QCAT Act is both inclusive and exclusive. It is inclusive in that it encompasses activities carried out in trade or commerce but then excludes such activity where the person acts in the exercise of a discipline not normally associated with trade or commerce. The exemption is directed to the person and their discipline rather than fixing on the nature of the activity.

1. That approach to jurisdiction is quite different to that adopted by the definition in the TPA, which does not contain an exemption. Similarly, in the Victorian Small Claims Act 1973 (Vic) (since repealed), the definition contained no exemption. While there have been some conflicting decisions, the better view seems to be that VCAT does have jurisdiction to hear matters involving professionals if the activity can be described as within trade or commerce[6].

   [6] Diskin Chiropractic Health Centre Pty Ltd v Molony& Another(1992) ASC 56-146; Cf Fawke v Holloway [1986] VR 11 per Beech J

1. The approach adopted to trade in the QCAT Act may also be compared with the definition of trade and commerce in Queensland’s Fair Trading Act which specifically includes any business or professional activity[7].

   [7]Fair Trading Act 1989 section 5

1. The definition used in the QCAT Act reflects the definition in the now repealed Small Claims Tribunal Act 1973 (Qld). There do not appear to be any cases which interpreted that provision.

1. The formulation of trade and commerce in Bond[8] is relevant to the first stage of enquiry: that is whether the supply of services was in trade or commerce. It is of no assistance in the second stage of enquiry: that is whether the person supplied the services in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce.

   [8] (1987) 71 ALR 615 at 620

1. If the exemption in the definition of trader in the QCAT Act is to have any application at all, it must operate to exclude professionals whose disciplines are not ordinarily regarded as within the field of trade or commerce. A discipline is:

1.      A branch of instruction or learing.[9]

[9] Butterworths Australian Legal Dictionary

1. Santow J explored the meaning of profession in Prestia v Aknar[10] . He offered the following as a working definition:

“This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.”

[10] (1996) 40 NSWLR 165 @ pp22 - 23

1. That formulation is, respectfully, a helpful one in interpreting the meaning of the exemption in the definition of trader in the QCAT Act.

1. Applying that approach to this case, it can be readily accepted that valuers are professionals. The Valuers Registration Act 1992 (Qld)[11] affirms that status and sets up processes for handling complaints about valuers and to discipline them for unsatisfactory professional conduct or professional misconduct.

   [11]See Part 4 Complaints and Discipline

1. A valuer’s opinion may well be a product that could be used in trade or commerce but it is produced as a result of intellectual activity. A valuer brings an independent mind to the question of land value. In expressing an opinion, a valuer must apply the methodology and principles developed and accepted in the discipline of valuation. In my view, the act of providing that opinion is an act in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce. 

1. Leave to appeal will be granted where there is a reasonably arguable case of error in the primary decision and it is necessary to correct a substantial injustice to the applicant caused by that error.[12] The learned adjudicator did not have jurisdiction to make the order he did. That is an error of law.[13]

   [12]Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41 at [6]

   [13]Craig v South Australia (1995) 184 CLR 163 at [66]–[68]

1. Leave to appeal is granted. The decision of the learned adjudicator in Minor Civil Dispute Claim 534/10 is set aside and Mr Cavallaro’s application is dismissed[14].

   [14]Queensland Civil and Administrative Act 2009 s146(b)