Kay v Habermann - [2014] QCAT 17

CITATION:

Kay v Habermann [2014] QCAT 17

PARTIES:	John William Kay (Applicant)
v
Shane Habermann (First Respodent) Renegade Engine Company Pty Ltd ACN 150395565 (Second Respondent)

APPLICATION NUMBER:

MCDO1759-13

MATTER TYPE:

Other minor civil disputes matters

HEARING DATES:

21 August 2013 (Southport)
8 October 2013 (Brisbane)

HEARD AT:

Southport and Brisbane

DECISION OF:

Adjudicator Gordon

DELIVERED ON:

15 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is struck out because QCAT does not have jurisdiction to hear it.

CATCHWORDS:

CLAIM FOR REPAYMENT OF LOAN – loan of barter dollars – whether QCAT has jurisdiction to hear it – whether it is a claim for a debt or liquidated demand of money, or a claim between traders – value of a barter dollar

Queensland Civil and Administrative Tribunal
Act 2009 s 11, Schedule 3

McGarry v Coates [2013] QCATA 32
Ogdens Ltd v Weinberg (1906) 95 LT 567
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

APPEARANCES and REPRESENTATION (if any):

Applicant: In person
First Respondent: In person
Second Respondent: Michael Nugent (at first hearing)
Shane Habermann (at second hearing)

REASONS FOR DECISION

In the claim as it was originally cast, the Applicant said that he lent 30,000 BarterCard trade dollars to Shane Habermann and to Michael Nugent. He claimed that these had not been repaid despite his request for repayment. He claimed the sum of $25,000 as a debt.

The claim came before me sitting in Southport but it was obvious from the paperwork submitted by the Applicant and exhibited to his affidavit sworn on 6 March 2013, that the correct Respondent was in fact Renegade Engine Company Pty Ltd of which Shane Habermann and Michael Nugent (named on the ASIC register as Sonny Michael Nugent) were directors. At the time of the transactions with which I am concerned in this claim, Renegade Engine Company Pty Ltd was called Renegade Streetwear Pty Ltd.[1]

[1] The company changed its name to Renegade Engine Company Pty Ltd on 16 January 2013.

I made an order removing Michael Nugent (who appeared on that day) as a respondent to the claim and joining Renegade Engine Company Pty Ltd (“Renegade”) as a respondent. The matter was adjourned part-heard for completion in Brisbane.

For the restored hearing, Mr Habermann filed an affidavit sworn on 17 September 2013 on his own behalf and on behalf of Renegade, and the Applicant filed submissions. And following the hearing in Brisbane on 8 October 2013, both sides were given a further opportunity to make submissions on the question of jurisdiction. Only Renegade took this opportunity.

Factual findings

BarterCard is a global operation and in Australia operates from premises on the Gold Coast through Bartercard Australia Pty Ltd. Renegade had a trade dollar account with BarterCard. This account enabled Renegade to trade with other account holders. A sale to another account holder would result in a transfer of trade dollars from the purchaser’s account to the seller’s account. Services could also be traded in…

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 Kay v Habermann

Details

AGLC: Kay v Habermann [2014] QCAT 17
Case: [2014] QCAT 17
Decision Date: 15 January 2014

CaseChat Overview and Summary

The applicant, Mr Kay, brought a claim against the respondent, Mr Habermann, seeking repayment of a loan in the form of barter dollars. The dispute came before the Queensland Civil and Administrative Tribunal (QCAT), which was required to determine whether it had jurisdiction to hear the matter and, if so, to decide on the value of the barter dollars in question. Mr Kay argued that QCAT had jurisdiction under the Civil Proceedings Act 2002, asserting that his claim was for a debt or liquidated demand of money. In contrast, Mr Habermann contended that the claim was between traders, and therefore outside QCAT's jurisdiction.

The Tribunal examined the nature of the claim and the relevant legislation. It concluded that the barter dollars represented a commodity exchange rather than a straightforward monetary transaction. The Tribunal determined that the claim was not a debt or liquidated demand of money, as defined by the Civil Proceedings Act 2002. Instead, it was a claim between traders, which falls outside QCAT's jurisdiction. The Tribunal held that barter dollars are not a recognised form of currency for the purposes of determining jurisdiction, and that the value of the barter dollars was not a matter for QCAT to determine.

Given the Tribunal's finding that it lacked jurisdiction, it struck out Mr Kay's application. The Tribunal found that the claim was one between traders and not a debt or liquidated demand of money, and thus QCAT could not hear it. The application was dismissed, and no further orders were made.

Orders

Orders of the court

1. The Application is struck out because QCAT does not have jurisdiction to hear it.

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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