Enstil Pty Ltd v Damian Richard O'Rourke ATF the ALTJ Trust

[2014] QCAT 496

CITATION: Enstil Pty Ltd v Damian Richard O’Rourke ATF The ALTJ Trust [2014] QCAT 496

PARTIES:	Enstil Pty Ltd (Applicant)
v
Damian Richard O’Rourke ATF The ALTJ Trust (Respondent)

APPLICATION NUMBER: MCDO1234-14

PARTIES:	Enstil Pty Ltd (Applicant/Appellant)
v
Damian Richard O’Rourke (Respondent)

APPLICATION NUMBER: MCDO1235-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 24 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: Application numbers 1234/14 and 1235/14 are dismissed for lack of jurisdiction.

CATCHWORDS: Minor civil dispute - jurisdiction – quantum of claims – singular cause of action – segmentation of cause of action

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. On 11 June 2014 two applications were filed in the Tribunal.

2. Application number 1234/14 sought the sum of $23,105.80 from Damian Richard O’Rourke ATF The ALTJ Trust pursuant to an advance & loan repayment agreement dated 8 November 2013.

3. That agreement was made between Enstil Pty Ltd (Enstil) of the one part and Damian Richard O’Rourke the person and Damian Richard O’Rourke as trustee for the ALTJ Trust of the other part.

4. The operative provisions of the agreement recited that both Damian Richard O’Rourke and the ALTJ Trust had borrowed sums of money during the latter part of 2013. As well the agreement recited that ALTJ Trust had been advanced commissions in the latter part of 2013.

5. The repayment terms stated that it was agreed that “DRO and ALTJ would pay back the excess advance in clause 1.1 over a period of 5 months from ALTJ”.

6. Under the heading “method of payment” Enstil would deduct a specific sum of money from the amount owing in total. A repayment regime was set out with a view to having all monies owing completely accounted for by, it appears, about April 2014.

7. Finally under the heading “outstanding payments due at end of term” the following was recited “should any payments due to Enstil be outstanding as at 31 May 2014, Enstil shall be entitled to repayment of these outstanding amounts within 5 business days of receipt of a request for payment.” Annexure 1 to the application annexes a table of calculations of monies owing. Such calculations include such things as personal vehicle insurance, personal home insurance and transfers “to Damian and wife”. The table calculates the “total to be repaid” as $40,754.15.

8. Application number 1235/14 sought the sum of $17,648.35 from Damian Richard O’Rourke pursuant to the same advance & loan repayment agreement dated 8 November 2013. Annexed to this application was the same table of calculations of monies owing totalling $40,754.15. The sum of $40,754.15 is the addition of $23,105.80 and $17,648.35.

Conclusions

1. The liability of both the ALTJ Trust and Mr O’Rourke for payment arose under the 1 agreement and cannot be construed as giving rise to 2 separate causes of action because:

   (1)   There is only 1 agreement that Enstil is entitled to sue upon.

   (2)   The totality of liability, if any, arises under the 1 agreement.

   (3)   Repayment terms provide for payment by both the ALTJ Trust and Mr O’Rourke over the same period of time, some 5 months.

   (4)   Clauses 1, 2 and 3 of the agreement are indicative of an intermingling of liability and responsibility for payment of monies owed. Hence 1 agreement not 2.

   (5)   Clause 4 of the agreement entitles Enstil to repayment of outstanding monies upon giving notice of repayment due. No dissection or dichotomy of causes of action is either recited or, it appears, contemplated.

2. The simple fact that the agreement involved 3 parties does not serve to entitle Enstil to divisibility which in this instance serves no other purpose than to bring two claims within the MCD jurisdiction when otherwise the quantum of those two claims would be well in excess of the minor civil dispute jurisdiction.

3. Alternatively it is clear these two applications would otherwise be consolidated for the purpose of hearing. Consolidation is based on the apprehension of identical causes of action so closely related that the two or more causes of action can be heard together. Consolidation therefore denotes 1 outcome, 1 decision resulting from 1 consolidated hearing i.e. a single order to do something or pay someone. If the sum of money to be pursued upon consolidation exceeds the minor civil dispute monetary jurisdiction then the same result occurs i.e. there is no monetary dispute jurisdiction to hear the consolidated claim.

4. The minor civil dispute jurisdiction is a limited jurisdiction that is to say there are limited causes of action that can be pursued as minor civil disputes. Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) does not contemplate that a claim of this nature in reality for some $40,000 can be adjudicated in its minor civil dispute jurisdiction.

5. Applications MCDO1234-14 and MCDO1235-14 dismissed for lack of jurisdiction.