Howard v Smith - [2014] QCATA 103

CITATION:

Howard v Smith [2014] QCATA 103

PARTIES:	Dean Howard (Applicant/Appellant)
v
Stephen James Smith (Respondent)

APPLICATION NUMBER:

APL535-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Forbes, Member

DELIVERED ON:

5 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The order of the Tribunal made on 3 October 2013 is set aside.

4. This matter is remitted for hearing by a Member or Adjudicator who has not previously dealt with it, on a date to be fixed and notified to the parties.

CATCHWORDS:

APPEALS – MINOR CIVIL DISPUTE – MINOR DEBT – whether within jurisdiction of Tribunal – whether a liquidated claim or a partnership dispute – judgment for debt in default of appearance at trial – objection to jurisdiction recorded by appellant – objection to jurisdiction not considered by Tribunal – whether error of law – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 50, s 93, s 138, s 139

Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1, cited
Charles v Shepherd [1892] 2 QB 622, cited
Commissioner of State Taxation v Cyril Henschke Pty Ltd (2010) 242 CLR 508; [2010] HCA 43, cited
Gramophone Company Ltd v Magazine Holder Company (1911) 28 RPC 221, cited
McGarry v Coates [2013] QCATA 32, cited
PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33, cited
Trust Company of Australia Ltd v Perpetual Trustees (WA) Ltd [1995] NSWSC 163, cited
Wiedenhofer v Commonwealth (1970) 122 CLR 172; [1970] HCA 54, cited
Wiley v King [2010] NSWSC 352, cited
Zisis v Knighton [2008] NSWCA 42, cited

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

On 28 March 2013 the Respondent (Smith), commenced these proceedings, in the form of a Minor Civil Dispute against the Appellant (Howard) claiming $16,420 as a debt due under an agreement to purchase from Smith a motor boat known as Four Winns.
Initially, the matter was set down for hearing at Southport on 21 June 2013. Smith appeared in person; Howard did not appear. The Tribunal then entered judgment against Howard for the amount claimed.
On 22 July 2013, upon Howard’s application, that order was set aside. It is unnecessary to canvass the grounds of that application.
In conjunction with that application to set aside, Howard objected to jurisdiction:
It is submitted that the emails passing between the parties and the joint accounts of the Applicant and Respondent, conclusively evidence that this matter is not a minor debt/liquidated debt, as that term is defined under the QCAT Act.
It is further submitted that the facts give rise to issues of the dissolution of a partnership and/or joint venture…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howard v Smith

Details

AGLC: Howard v Smith [2014] QCATA 103
Case: [2014] QCATA 103
Decision Date: 5 May 2014

CaseChat Overview and Summary

In the matter of Howard v Smith, the appellant sought to appeal a judgment of the Civil and Administrative Tribunal of New South Wales. The dispute concerned a minor debt owed by the respondent to the appellant. The Tribunal found in favour of the appellant and rendered a judgment for debt after the respondent failed to appear at the trial. The appellant objected to the Tribunal's jurisdiction on the basis that the dispute involved a partnership issue rather than a liquidated claim. This objection was not addressed by the Tribunal.

The primary legal issue before the court was whether the Tribunal erred in failing to consider the objection to its jurisdiction. The court needed to determine whether the objection was a matter of law or fact, and whether the Tribunal had a duty to consider it. Additionally, the court needed to decide whether the failure to consider the objection constituted an error of law warranting an appeal. The court also had to consider whether leave to appeal should be granted, given the relatively minor nature of the debt.

The court held that the objection to jurisdiction was indeed a matter of law, and the Tribunal was obligated to address it. By not doing so, the Tribunal committed an error of law. Consequently, the court granted leave to appeal and allowed the appeal. The original order made by the Tribunal on 3 October 2013 was set aside, and the matter was remitted to be heard by a Member or Adjudicator who had not previously dealt with it. The court emphasized that the relatively minor nature of the debt did not preclude the appellant from seeking appellate review of the Tribunal's failure to consider the jurisdictional objection.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The order of the Tribunal made on 3 October 2013 is set aside.

4. This matter is remitted for hearing by a Member or Adjudicator who has not previously dealt with it, on a date to be fixed and notified to the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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