Napper v Gee

[2024] QCAT 146

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Napper v Gee [2024] QCAT 146

PARTIES:

JANELLE NAPPER

(applicant)

v

CAMERON GEE

(first respondent)

MIA DOWLING

(second respondent)

APPLICATION NO/S:

Bundaberg Claim 70/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

4 April 2024

HEARING DATE:

13 March 2024

HEARD AT:

Bundaberg

DECISION OF:

Janelle (Payne) Boegheim, Acting Magistrate (Ordinary Member) - delivered from Mackay

ORDERS:

Pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009:

The Application is struck out for lack of jurisdiction

 CATCHWORDS:

TRIBUNALS: Jurisdiction - minor debt claim, concurrent interests - co-ownership, severance of joint tenancy, liquidated or unliquidated damages

Queensland Civil and Administrative Tribunal Act 2009 (Qld),s 12, 13,47, 47

Property Law Act 1974 (Qld), s 38

Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26
Sauer v Nuheara Ltd [2023] QCATA 155

REASONS FOR DECISION

1. As the Appeal Tribunal has observed, here is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.[1]

   [1]Penfold v Firkin & Balvius [2023] QCATA 11.

2. The first return date of this matter was on 13 March 2024, the parties having been notified of the same by the (Bundaberg) registry on 12 February 2024. All three parties appeared in person. At that mention, I queried with the parties whether the Tribunal had jurisdiction. After enquiring of the Applicant the nature of the claim that she was seeking to make and receiving oral submissions, I indicated I would consider the matter and deliver written reasons to assist. This is that decision.

The Application for minor civil dispute filed 6 December 2023

1. The Applicant is the First Respondent’s mother. The Second Respondent is engaged to the First Respondent and the mother of the Applicant’s grandchild. The Applicant and the Respondents are estranged, with other proceedings and orders between them.

2. On 6 December 2023, the Applicant filed an Application for minor civil dispute - minor debt. The Application as filed seeks $65,490, including a deposit ($10,000), Stamp Duty ($48,000), improvements (solar - $5,490 and toilet $1,200) and repairs ($800).

3. On 8 January 2024, the Respondents filed a response.

4. The basis of the Application arises from co-ownership of property at 61 Russell Street, Maryborough (the Property). Although a title search was not before the Tribunal, it is not in issue that the Applicant co-owns the property and has been excluded from living in it, by the Respondents.

5. The Applicant primarily seeks recovery of money she allegedly paid towards the purchase of the Property. The Applicant alleges financial hardship, including an inability to qualify for rental and other forms of government assistance as she has an interest in real property. Amongst other things, the Application petitions:

   “I am also asking if you could please state that the house needs to be sold as soon as possible and that all excess funds after the mortgage andfees are paid, are given back to me so as I can start my live without all the stress, the stress is that the house is not being maintained. Or that the above mentioned re finance the loan and have my name removed from the mortgage and also to pay me out” (sic)

6. In support of her Application, the Applicant annexes a letter from her former solicitors dated 14 March 2022 headed ‘severance of joint tenancy’. It is a letter said to be without prejudice, so I disregard the content, except the subject line, which confirms the nature of the relief claimed.

Relief under the Property Law Act 1974 (Qld) - Appointing a statutory trustee for sale

1. Whilst relief in relation to concurrent interests - co-ownership might be available under Part 5 of the Property Law Act 1974 (Qld), including appointing a statutory trustee for sale or partition under section 38 of that Act, the ‘court’ for the purposes of that Division is exclusively the Supreme Court of Queensland.[2]

   [2]Property Law Act 1974 (Qld), Schedule 6, Dictionary, definition of ‘court’.

Tribunal’s jurisdiction for minor civil disputes

1. By section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal has jurisdiction to hear and decide a minor civil dispute.

2. ‘Minor Civil Dispute’ is defined in Schedule 3, relevantly as follows:

   “(a) a claim to recover a debt or liquidated demand of money of up to the prescribed amount;[3] or

   (b)a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders:[4]

1. for payment of money of a value not more than the prescribed amount; or

2. for relieffrom payment of money of a value not more than the prescribed amount; or

   (Hi) for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or

   [3]Excluding a Fair Work Claim (Schedule 3, ‘minor civil dispute’, para 4).

   [4]Excluding a claim to which the Fair Trading Act applies (Schedule 3, ‘minor civil dispute’, para 3)

(iv)  for return of goods of a value not more than the prescribed amount; or

1. for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or

   (c)a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or

   (d)a tenancy matter; or

   (e)a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or

   (f)a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.”

1. For completeness, by paragraph 2 of the definition, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

2. The prescribed amount is, currently, $25,000.[5] A relevant person may agree to limit it claim to this amount (s 12(2)) and can be taken to have done so by applying to the Tribunal (s 12(3)) but, on exploring this with the Applicant, she was still seeking $65,490 from the Respondents.

   [5]Queensland Civil and Administrative Tribunal Act, definition of ‘prescribed amount’.

3. Under section 12(1) of the QCAT Act, the tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the Act, applied to the tribunal to deal with the dispute. ‘Relevant person’ is defined in section 12 (4) QCAT Act.

4. Thus, the Tribunal only has jurisdiction if the Applicant is a ‘relevant person’ as defined in subsection 12(4) of the QCAT Act, that is (paraphrasing), (a) a person with a debt or liquidated demand of $25,000 or less (b) or (c) a consumer with a contract with a trader or two or traders between themselves seeking payment, excusal of payment, performance of work or return of goods (all $25,000 or less) (d) a person incurring loss or damage of $25,000 or less because of a vehicle, (e) a person seeking relief in relation to a residential tenancy matter, (f) a person with a fence or tree dispute with their neighbour; or (g) a person who may apply for relief under the Building Act 1975.

5. The limited relief the Tribunal can grant is set out in section 13 of the Act, none of which permit the Tribunal to order payment of an amount greater than the prescribed amount, severance of the joint tenancy or that the Property be sold (or any other form of equitable relief).

6. Not only does the Applicant seek $65,490 but the Applicant alleges the Property was purchased for $325,000 and is presently worth between $370,000 to $400,000. (The Respondents put the present value at $340,000).

7. The Applicant’s claim does not arise in debt. It is also not for a liquidated sum, readily calculated by a pre-agreed or other formula. It really is a claim for equitable relief in relation to monies paid in relation to, or orders for sale of real property.

8. As Robin DCJ stated in Rollone Pty LtdACN 101 829 231 v Byrne [2010] QDC 517, citing Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26 at [79];

   "The ordinary meaning of "liquidated damages" is a sum fixed by the parties to a contract as a genuine pre-estimate of damage in the event of a breach, whether as a predetermined lump sum, or by means of a specific calculation or scale of charges or other positive data..." and at [81], "It is... clear that a claim for unliquidated damages is not converted into a claim for liquidated damages by reason of the plaintiff having incurred and being able to specify the costs for which the damages are claimed.”

9. Accordingly;

(a)The proceeding is not a minor civil dispute under section 11;

(b)the Applicant is not a relevant person within the meaning of section 12; and

(c)     The Application is not one within the jurisdiction of the Tribunal.

Dismissal or strike out of proceeding

1. Under s 47 of the QCAT Act, the Tribunal may dismiss or strike out a proceeding if a proceeding or part of a proceeding is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process. The effect of such an order, under s 49, is that another proceeding or a part of a proceeding of the same kind relating to the same matter cannot be started before the Tribunal without the leave of the president or deputy president.

2. The filing fee was waived. I do not consider it appropriate to transfer the proceeding to the Supreme Court under section 52 of the QCAT Act. The Applicant will need to decide whether to bring relief under the Property Law Act. I make no comment about the likely success or otherwise of such application or its risks, costs and implications but if she wishes to file such proceeding, she will need to file the requisite forms under the Uniform Civil Procedure Rides 1999 (Qld) (e.g. Form 5 Originating Application and Form 46 Affidavit) and pay such filing fees as the registrar of that Court might determine. The requisite forms are available at: type="1">

3. For the above reasons, the Application is struck out for want of jurisdiction.