Rosa v Tait Management Services Pty Ltd - [2012] QCATA 214

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
Ziegler t/a Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78

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…

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.

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Details

Case: [2012] QCATA 214
Decision Date: 19 October 2012

CaseChat Overview and Summary

Rosa commenced proceedings in the Civil and Administrative Tribunal against Tait Management Services Pty Ltd, seeking a declaration that the latter's claim for repairs to a property was not a debt. The matter was brought as a minor civil dispute. Tait Management Services sought to recover the cost of repairs that were allegedly required under a contract for the sale of a business. The respondent claimed that the applicant had failed to comply with special conditions attached to the contract to carry out repairs. The applicant argued that the claim was not a debt and, if it was, the claim was between two traders, and therefore the Tribunal did not have jurisdiction. The respondent cross-claimed for the amount of the debt. The Tribunal dismissed the application and the cross-claim. The applicant then sought leave to appeal the Tribunal's decision, but this was refused. The applicant now sought leave to appeal the Tribunal's refusal to reopen.

The central legal issues were whether the claim for repairs was a debt or a liquidated demand, whether the claim was between two traders, and whether the Tribunal had jurisdiction. The Court found that the claim for repairs was a debt, but that it was not between two traders as the applicant had engaged in consumer conduct. The Court found that the Tribunal did have jurisdiction, but that an appeal from a refusal to reopen was not permitted. The Court held that the Tribunal had erred in finding that the claim was between two traders and that it had jurisdiction. The Court set aside the Tribunal's decision and dismissed the application.

Orders

Orders of the court

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.

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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