Rosa v Tait Management Services Pty Ltd
[2012] QCATA 214
•19 October 2012
| CITATION: | Rosa v Tait Management Services Pty Ltd [2012] QCATA 214 |
| PARTIES: | Laura Rosa (Applicant/Appellant) |
| v | |
| Tait Management Services Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL083-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 19 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted and the Tribunal’s decision on 13 October 2011 is set aside.1. Application MCD 2965/10 is dismissed.2. |
| CATCHWORDS: | Minor civil dispute – sale of a business – where applicant failed to comply with special conditions to carry out repairs – where respondent sought to recover the cost of repairs – whether debt or liquidated demand – whether claim between two traders – whether the Tribunal has jurisdiction – where appeal from a refusal to reopen not permitted Queensland Civil and Administrative Tribunal Act2009, ss 139, 142(3), Schedule 3 Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 |
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 Act2009 (QCAT Act).
REASONS FOR DECISION
On 13 October 2011 the Tribunal, sitting in the minor civil disputes jurisdiction, made an order that Laura Rosa pay to Tait Management Services Pty Ltd $10,000.00 in damages.
The damages claimed arose out of a written Guest House Purchase Agreement dated 7 September 2009 in which Tait Management agreed to purchase from Ms Rosa a business known as the Bowen Terrance International Accommodation Guesthouse for a total purchase price of $440,000.00. There was to be a lease back of the real property from which the business was to be conducted by Tait Management.
The business contract contained special conditions imposing an obligation on the vendor to carry out certain work in the premises before completion. That work included repairing damage caused by mould in the downstairs bathroom and retiling; installing a new range hood; repair coping to the swimming pool and ensure that it meets the appropriate standard; undertaking external paint work; removing debris and installation of white ant stations around the premises.
Tait Management Services contend that Ms Rosa did not comply with the special conditions. It then commenced a proceeding in the minor civil disputes jurisdiction claiming $4,124.00 for the cost to carry out the work. It also claimed an amount by way of damages for missing chattels which were included in a stock inventory as part of the contract of sale.
A response was filed by Ms Rosa contesting the issues raised by Tait Management Services in the particulars to its application contending that the special conditions had been complied with.
On 20 May 2011 the Tribunal made an order that Ms Rosa pay to the applicant $2,374.30 and undertake repair works to the premises within 45 days. Because the repair work was not carried out as directed the matter was brought back before the Tribunal on 13 October 2011 and a further order was made vacating the earlier order, and ordering that Ms Rosa pay to the applicant $10,000.00 by way of damages for breach of the Guest House Purchase Agreement.
Ms Rosa did not attend the Tribunal when that decision was made claiming that she was unaware that the matter was listed for hearing so she applied to reopen the proceeding. On 25 November 2011 the application to reopen was considered by the same Adjudicator who made the decision on 13 October 2011 and he dismissed the application.
Ms Rosa then filed an application for leave to appeal or appeal against both the refusal to reopen, and it seems, although it is not clear, the primary decision made on 13 October 2011.
In respect of the appeal against the decision to refuse the reopening, that can be dealt with expeditiously. Section 139(5) of the QCAT Act provides that the Tribunal’s decision on an application to reopen is final and cannot be challenged, appealed against, reviewed, set aside or called into question in another way under the Judicial Review Act 1991 or otherwise. The appeal in respect of the reopening therefore must be dismissed.
However, there is a more fundamental issue in the primary proceeding that requires consideration and that is whether the Tribunal had jurisdiction to make the order on 13 October 2011. Neither party has raised the issue of jurisdiction in the appeal but similar to what occurred in Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro[1] where the issue of jurisdiction was not specifically raised, I, like the Deputy President, feel compelled to deal with it here.
[1][2010] QCATA 65.
It seems the proceeding was treated as though it was a minor civil dispute within the definition contained in Schedule 3 to the QCAT Act. That definition includes a claim to recover a debt or liquidated demand of money with or without interest. It also includes a claim arising out of a contract between a consumer and a trader or two or more traders. There are other claims included in the definition but none relevant to this application. It seems that the proceeding was dealt with as though it was a claim between two traders.
Tait Management Services' claim relates to Ms Rosa’s performance of the written contract. Non performance of that contract by her, or breach, gives rise to a claim for damages for breach of contract. It is not a claim for a debt or liquidated demand[2] nor does Ms Rosa or Tait Management Services fall within the definition of trader as contained in schedule 3 to the QCAT Act as a person who carries on a business of supplying goods or services. They may have been in the business of providing accommodation services, but as between themselves this is nothing more than a one off sale of a business.
[2] Ziegler t/a Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78.
It is unfortunate that this matter has proceeded so far before the jurisdictional point was considered but it would be remiss of me not to deal with it in this application for leave to appeal. Leave to appeal will be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Clearly there is an error of law and leave to appeal must be granted. Under section 146 of the QCAT Act as the appeal has succeeded on a question of law I propose to set aside the learned Adjudicator’s decision and substitute my own decision. The decision of the Tribunal will be that leave to appeal is granted and that the decision of 13 October 2011 is set aside. Instead, there will be an order that minor civil dispute application 2965/10 is dismissed. This decision does not prevent Tait Management Services from commencing a proceeding in a court of competent jurisdiction.
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