Lim v New College Queensland Pty Ltd
[2013] QCAT 605
•16 September 2013
| CITATION: | Lim v New College Queensland Pty Ltd & Ors [2013] QCAT 605 |
| PARTIES: | Mrs Minhee Lim (Applicant) |
| v | |
| New College Queensland Pty Ltd (First Respondent) Jae Hyung Park (Second Respondent) Kate Park (Third Respondent) |
| APPLICATION NUMBER: | MCDO583/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 16 September 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 16 September 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. THAT the Respondents Application for miscellaneous matter filed 29 August 2013 to strike out the claim is granted. 2. THAT the claim is struck out for want of jurisdiction. |
| CATCHWORDS: | APPLICATION FOR DISMISSAL- where respondents claim tribunal does not have jurisdiction – where applicant is not a relevant person to bring claim - whether proceeding should be struck out Queensland Civil & Administrative Tribunal Act 2009 Agar v Hyde [2000] HCA 41; |
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 (QCAT Act).
REASONS FOR DECISION
The respondents make application under section 47 of the QCAT Act for the dismissal of the claim on the basis that the tribunal does not have jurisdiction to hear the matter and that Ms Lim if not a “relevant person” as the QCAT act applies to bring a claim in the tribunal
The application was served on Ms Lim. She was provided with fourteen days to provide written submissions in response. Ms Lim provided written submissions in response to the strike out application. I am satisfied that I can determine the application based on the written submissions of the parties.
Section 47 of the QCAT Act for Dismissing, striking out or deciding if unjustified proceeding or part, the section states:
(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
(2) The tribunal may—
(a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
(b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—
(i) make its final decision in the proceeding in the applicant's favour; or
(ii) order that the party who brought the part before the tribunal be removed from the proceeding; or
(c) make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
When considering a strike out application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case.[1] It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or lacks merit. The issue of jurisdiction can be determined on the question of the cause of action and therefore summary dismissal may be appropriate.
[1] Dey v Victorian Railways Commissioners [1949] HCA 1.
A lack of any cause of action must be very clear. The party seeking to strike out the claim must demonstrate a high level of certainty about the outcome of the proceeding if it were to continue.[2]
[2]Agar v Hyde[2000] HCA 41; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146.
A question of fact may not be determined in summary proceedings and dismissal should not be granted merely because it appears that an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.[3]
[3] Spencer v Commonwealth [2010] HCA 28.
In this case the issue raised by the respondents is that the claim filed by Ms Lim is not a minor civil dispute and therefore does not fall within the jurisdiction of the tribunal to hear the matter.
Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 lists the types of applications that the Tribunal may consider in its minor civil dispute jurisdiction. The section includes a debt or liquidated demand to $25,000 as well as claims arising out of a contract between a consumer and a trader (which is not relevant in this case) and a claim arising out of a contract between 2 or more traders (which is also not relevant). While there are other types of applications that may be entertained pursuant to section 12, none of those are relevant.
Schedule 3 of the QCAT Act describes a minor civil debt, amongst other things, as “a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount ($25,000).”
A debt or a liquidated demand has been described as a sum of money that can be calculated by reference to a formula, schedule or some other yardstick by which the debt or sum payable can be readily calculated.
Ms Lim filed her claim on 23 July 2013 claiming for damages that included the reimbursement to her for the associate costs in setting up her business raising breach of contract and subsequent damages arising from a failed business transaction. She claims that there was a breach of agreement between her and the Respondents involving a franchise agreement. The claim is for $17,881.82
The respondents allege that the claim by Ms Lim is not a debt or liquidated demand. It has been suggested that the test is whether the claim can be calculated or ascertained by a formula.[4]
[4] Green v Tri-Barfen Pty Ltd [2006] QDC 160.
In the decision of Breen v Tribarfen[5], Justice Wilson stated:
In contract, liquidated damages are usually awarded only in those cases where the contract itself contains a clause providing for them, of the usual kind intended to avoid litigation about the sum to be awarded in the event of default. Nothing of the kind is suggested here.
[5] Ibid.
Ms Lim provided a copy of the Franchise Agreement[6] and it is clear that the agreement does not include a clause relating to damages.
[6] Annexure ‘C’.
Ms Lim claims that the “Respondents have breached the Franchising Code of Conduct and the franchising licence was never approved by the Head Franchisor.” The claim is for a debt owed or liquidated demand for the reimbursement of monies paid by Ms Lim to the respondents for monies that were paid or advanced to the respondents for the purchase of a franchise business.
The respondents allege that the amounts sought by Ms Lim are for what appear to be “damages for misrepresentation and deceptive conduct” and what is termed in her submissions as “total failure of consideration”. They further allege that as Ms Lim raises the fact that the “contract is unenforceable and void because the respondent breached the code of conduct” the claim suggest it is a claim for damages arising from a breach of contract. I agree with the respondents’ submissions in that regard.
The respondent states that Ms Lim is not a relevant person under the QCAT Act.
The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.[7] In this matter the definition of relevant person is contained in section 12 that states, a relevant person means a person who can make a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable.[8]
[7] QCAT Act s 12(1).
[8] Ibid s 12(4)(a).
In the decision on Hill v Berghofer [2011] QCATA 34 where the Honourable Justice Alan Wilson refers to the fact that the words “debt or liquidated demand” are not defined in the QCAT Act. He goes on to state that “a debt or liquidated demand is, as the Deputy President explained in Ziegeler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78, one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the Court or Tribunal, it is not liquidated.” In this case the amount claimed by Ms Lim appears to require assessment and determination.
Ms Lim may have a dispute with the respondent relating to a Franchising Agreement and alleged damages resulting from breach of the Agreement by the respondents. She alleges a failure of consideration and seeks a refund of monies she has paid. While Ms Lim may have a valid claim against the respondents I find that this is not the appropriate forum for the matter to be heard and determined. The Tribunal does not have jurisdiction to hear the matter as I am not persuaded the claim is a minor civil debt matter relating to a claim for a repayment of a debt or a claim for a liquidated sum.
This Tribunal does not have in its minor civil dispute jurisdiction the power to determine a claim for damages arising out of alleged breach of contract and to determine unliquidated amounts sought for damages arising from such breach. That being the case this claim must be dismissed for lack of jurisdiction.[9] I will make the appropriate orders accordingly.
[9] Ibid s 47(2)(a).
ORDERS
1. THAT the Respondents Application for miscellaneous matter filed 29 August 2013 to strike out the claim is granted.
THAT the claim is struck out for want of jurisdiction.
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