Fin One Pty Ltd v Kucharski

DISTRICT COURT OF QUEENSLAND

CITATION:

Fin One Pty Ltd v Kucharski [2018] QDC 35

PARTIES:

Fin One Pty Ltd (A.C.N. 139 719 903)

(appellant)

v

Adam Michael Kucharski

(respondent)

FILE NO/S:

3986 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

16 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2018

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL – JURISDICTION OF MAGISTRATES COURTS – whether a proceeding to recover personal property was a “personal action” – whether Magistrates Courts have jurisdiction in any event.

District Court of Queensland Act 1967 (Qld), ss 68, 69

Magistrates Courts Act 1921 (Qld) ss 4, 45
Personal Property Securities Act 2009 (Cth) s 123
Uniform Civil Procedure Rules 1999 (Qld) r 26

Vale v TMH Haulage (1993) 12 ACSR 124

Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455

Walsh v Toyota Finance Australia Ltd [2016] QDC 92

COUNSEL:

D Skennar QC for the appellant

SOLICITORS:

Morgan Conley Solicitors for the appellant

Introduction

1. This is an appeal pursuant to section 45 of the Magistrates Courts Act 1921 (Qld) (“MCA”) from the decision of Acting Magistrate Carmody dated 21 September 2017 dismissing the originating application of the appellant.

1. Her Honour ultimately determined that the Magistrates Court did not have jurisdiction to entertain the relief sought in the originating application.  This relief, although somewhat inelegantly drafted, was effectively the delivery up of possession of a 2008 Mitsubishi Triton motor vehicle (“the vehicle”) and ancillary orders.  The affidavit filed in support of the originating application disclosed that the vehicle was the subject of a consumer loan contract entered into between the appellant and the respondent which required the respondent to make payments totalling $25,261.40 together with interest and establishment fees.  The appellant alleged that the respondent had defaulted in making payments pursuant to the consumer loan contract and wished to exercise rights to repossess the vehicle pursuant to section 123 of the Personal Property Securities Act 2009 (Cth).

1. The respondent failed to appear at the hearing of the originating application in the Magistrates Court and failed to appear at the hearing of the appeal before me.  It was submitted to Acting Magistrate Carmody that there was effectively a preliminary legal question of jurisdiction which required determination and the legal representative of the appellant invited her to determine this on the basis of written submissions which had been provided to her.[1]  In a carefully considered written judgment Her Honour noted the divergence in approach taken in recent decisions of her colleagues and that of Smith DCJA in Walsh v Toyota Finance Australia Ltd[2] before determining that the decision in Walsh should not be followed and that she lacked jurisdiction to entertain the originating application.

   [1]MC T 1-2 – 1-3 .

   [2][2016] QDC 92.

1. The appellant originally appealed on a number of grounds, however allegations concerning a denial of natural justice were abandoned at the hearing of this appeal and it was conceded that legislative…