SGM Properties Pty Ltd v Wellsmore

[2013] QCAT 748

CITATION: SGM Properties Pty Ltd v Wellsmore & Ors [2013] QCAT 748

PARTIES:	SGM Properties Pty Ltd (Applicant)
v
Paul Raymond Wellsmore Octave Developments Chinchilla Pty Ltd Octave Capital Pty Ltd Octave Pty Ltd (Respondents)

APPLICATION NUMBER:   MCD 488/13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 11 November 2013

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 29 November 2013

DELIVERED AT: Southport

ORDERS MADE: 1.   Transfer the proceeding in QCAT application MCD 488/13 filed 19 June 2013 to the Magistrates Court of Queensland, at Brisbane.

CATCHWORDS : 

Minor civil debt – alleged unpaid invoices for services rendered – application to transfer claim to Magistrates Court – where proceedings commenced by the Respondent against the Applicant in Magistrates court – proper jurisdiction

Queensland Civil and Administrative Tribunal Act 2009 ss 12, 52

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Ms Sandra Murray (director) of Applicant

RESPONDENT: Mr J Saul (solicitor) representing the Respondents

REASONS FOR DECISION

1. The Respondents filed an application on 11 October 2013 seeking orders from the tribunal, for leave to be represented, to strike out the claim, and or in the alternative, to transfer the claim to the Magistrates Court. The applications were dealt with on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

2. The Respondents application for leave to be represented was granted, the application to strike out was refused and the application to transfer the claim to the Magistrates court was listed for a Direction Hearing on 11 November 2013 at 9:30am. The parties were required to file submissions in relation to the application. The Respondents filed submission but the Applicant did not.

3. At the hearing on 11 November 2013 the Applicant gave sworn evidence in relation to the application to transfer the claim to the Magistrates Court. The Respondents stated that their claim in the Magistrates Court against the Applicant was that day before the courts in Brisbane on an interlocutory application. The Respondents were awaiting the outcome of the application that day which would determine the status of that Magistrates claim and any impact on the claim filed with the tribunal.

4. The Respondents allege that the claim filed against the Applicant in the Magistrates Court related to the same facts and circumstances as the claim field against them by the Applicant in the tribunal. The Applicant disagreed with that proposition. The Applicant stated that her claim was for unpaid sums being for marketing and referral fees relating to land and property sales pursuant to an agreement entered into between the parties. She claims that her claim for payment is pursuant to a different contract and agreement that the Respondents case relies upon. The Respondents state that the claim in the Magistrates Court against the Applicant seeks payment and reimbursement from the Applicant for alleged overpayment of instalments of commissions. The Respondents contend that on ’20 September 2013 Magistrate Roney ordered that, amongst other things, that Octave Developments (Chinchilla) Pty Ltd file and serve a Statement of Claim by 4 October 2013 and the SGM Properties Pty Ltd file and serve a Defence by 18 October 2013’.

5. At the conclusion of the hearing on 11 November 2013 the decision relating to the transfer application was reserved.  A further order was made that the parties were required to file further submissions relating to the outcome of the Respondents’ claim in the Magistrates court in Brisbane within seven days. It was ordered that the reserved decision would be determined on the papers after 20 November 2013.

6. The parties did not file any further submission pursuant to order 2 made on 11 November 2013 relating to the outcome of the proceedings commenced by the Respondents against the Applicant in the Magistrates Court in Brisbane.

1. The tribunal has the power to transfer a proceeding or part of a proceeding if it would be more appropriately dealt with by another tribunal, or court or another entity, the proceedings can be transferred.[1]  The power to transfer a matter to another court or tribunal for hearing can only be exercised by a legally qualified member.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 52(1).

   [2] Ibid s 52(7).

1. On the evidence provided to the tribunal including the oral evidence of the parties and in submissions I find that the nub of the dispute between the parties relates to whether commission that were paid to the Applicant by the Respondent were payable under an agreement that complied with Property Agents and Motor Dealers Act 2000 (Qld) requirements and whether the Applicant was a Real estate Agent and if the failure of providing a PAMDA Form 22A bars the Applicant from any entitlement for payments for her acts and conduct if acting as a real estate agent.

1. I am satisfied that the Applicants claim also falls on the determination of the same legal issue posed by the Respondents claim. I find that the Magistrates Court proceeding filed by the Respondents against the Applicant and the claim filed by the Applicant in this tribunal relate to the same set of facts and circumstances and that the questions of facts, evidence and the law would be the same in both matters.

1. I find that the Respondents are barred by the monetary jurisdiction and that the prescribed amount of the tribunal[3] is a sum that would be exceeded as claimed by the Respondents, effectively preventing the Respondents from filing a counter claim against the Applicant.

   [3] Ibid s 12.

1. In the circumstances it would be fair, just, efficient, economical and appropriate for the claim to be transferred to be heard at the Magistrates Court at the same time as the Respondents claim.

1. On 18 November 2013 the Applicant filed a Form 40 Application for Miscellaneous matters agreeing to transfer the claim to the Brisbane Magistrates Court.

What are the appropriate Orders?

1. For the reasons outlined above I am satisfied that the application to transfer the QCAT claim of 4988/13 for minor civil debt should be granted and that the claim be transferred to the Brisbane Magistrates Court with reference to the Magistrates court case of M10237/13.

1. The order that I propose to make is as follows:

Transfer the proceeding in QCAT application MCD 488/13 filed 19 June 2013 to the Magistrates Court of Queensland, at Brisbane.