Singleton v KRG Conveyancing Centre trading as KRG Law
[2010] QCAT 708
•4 October 2010
| CITATION: | Singleton v KRG Conveyancing Centre trading as KRG Law [2010] QCAT 708 |
| PARTIES: | Drew Roy Singleton and Susannah Elizabeth Singleton (Applicant) |
| v | |
| KRG Conveyancing Centre trading as KRG Law (Respondent) |
| APPLICATION NUMBER: | MCDO1500-10 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 1 September 2010 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 4 October 2010 |
| DELIVERED AT: | Southport |
ORDERS MADE: | 1. That the claim be dismissed for want of jurisdiction. |
| CATCHWORDS : | Jurisdiction – section 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) – definition of ‘relevant person’ – definition of ‘trader’ – whether Applicant is entitled to bring claim that is not for debt or liquidated demand for money – claim for ‘damages’- proper named Respondent. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Drew Roy Singleton |
| RESPONDENT: | Malcolm Tucker |
REASONS FOR DECISION
Overview of the Matter
The Applicants filed a claim on 6 May 2010 for a minor civil dispute – consumer dispute for orders that the Respondent pay and refund monies to them. The claim for payment is for $5240.16 and a refund of money of $625.00 and a filing fee of $90, the total claim amount being $5955.16.
The Applicants were clients of the Respondent. Mr Malcolm Tucker who appeared as the current Principal of the Respondent Company KRG Conveyancing Centre trading as KRG Law. The Applicants claim is that the Respondent should reimburse them for costs incurred from the error of the Respondent in settling a conveyance matter two weeks prior to the scheduled contract date on 23 October 2009 and incurring additional costs for loan fees and loan repayments.
The Respondent states that he is not the proper Respondent to the claim and that even if he was that the Applicants do not have jurisdiction to bring their claim against the Respondent as that entity is a Law Firm, KRG Conveyance Centre trading as KRG Law.
History of the matter
The facts are that the Applicants instructed KRG Law to conduct a conveyance on their behalf. The Principal at the time was Mr Ian Richardson. Mr Richardson was removed from the roll of Practitioners on or about 25 November 2009 which was subsequent to the conduct of the conveyance. On 11 December 2009 Mr Richardson passed away.
The Applicants seek to claim against the firm and the current Principal of that firm is Mr Tucker. The firm KRG Conveyancing Pty Ltd was registered on 9 February 2010. The business name KRG Law was registered by the Company on 6 April 2010. The law firm that the Applicant dealt with is not this Respondent as the alleged conduct of the conveyance occurred between 20 August 2009 and settlement on 23 October 2009. The Applicants may have a claim personally against Mr Ian Richardson and or his firm. The firm KRG Conveyancing Pty Ltd did not exist at the time the alleged claim arose.
Mr Tucker stated that he was employed as a Solicitor with KRG Law on 10 November 2008 and continued with that employment until 25 November 2009 when he was issued with an unrestricted principal certificate as a result of Mr Richardson being removed from the roll. I am satisfied that Mr Tucker should not be a Respondent to the proceedings.
The Respondent submitted that the Applicants can not bring this application in this tribunal as it does not have jurisdiction to hear the matter. The Respondent contends that the respondent is a law firm and engages in professional undertakings and as such is not capable of being included as a party to a consumer dispute.
The parties appeared at the tribunal on 1 September 2010, evidence provided and submissions made regarding the claim. The Respondent raised issues relating to the proper Respondent and jurisdiction. The tribunal made orders and directions. The parties were ordered to make file and serve submissions in relation to the issues of:
a) Pleadings to be amended for the name of the proper Respondent; and
b) Jurisdiction of the Tribunal to hear the matter.
It was ordered that the decision regarding the proper named Respondent and the issue of jurisdiction would be made on or before 8 October 2010.
The Claim by the Applicants
The Applicants filed submissions dated 15 September 2010 and stated that the ‘relevant period’ is as agreed as between the 20 August 2009 and 6 November 2009. The applicants state the dispute is not with any “particular individual but rather the organisation, its Directors and Shareholders that provided services to them and undertook a conveyance and settlement of a property at Varsity Lakes”.
The Applicants submissions state that they now agree that the Respondent KRG Law trading as KRG Conveyancing Centre Pty Ltd is not the relevant Respondent as the entity was not in existence during the relevant period. Further in their submission the Applicants concede that the proper Respondent in this dispute is KRG Lawyers & Conveyancers (Qld) Pty Ltd trading as KRG Conveyancing Centre. The Applicants provided a current and historical Australian Securities and Investment Commission (ASIC) search identifying that the Respondent at the relevant period was KRG Lawyers & Conveyancers (Qld) Pty Ltd and the Director at the time was Bruce Thomas Turner.
On the issue of jurisdiction the Applicants claim that their application could be either a ‘minor civil dispute’ specifically ‘consumer and trader dispute’ or an ‘Other Civil Dispute’ specifically a ‘legal costs agreement’ claim. The Applicants appear to be confused as to what their actual dispute is about. The Applicants submissions refer to their ‘belief that it may be appropriate to categorise our application as a “Consumer and Trader dispute”. The Applicants also claim in their submission that in the alternative their claim could be treated as a civil dispute relating to a ‘legal costs agreement’ claim, specifically a contractual dispute.
It is not appropriate for the Applicants to attempt to file a claim and plead two different types of alternative causes of action. I am satisfied that if the claim is a contractual dispute between the Solicitor who had carriage of the matter and who was also the Principal of the Firm, during the relevant period, that such claim would fail as the Principal has not been joined to the claim and in any event, is now deceased.
I find that the claim filed by the Applicants relates to a Minor Civil dispute – consumer dispute and this is the only application I can deal with.
The claim by the Respondent
The Respondent contends that the Applicants claim is not for a debt or liquidated demand for money but for damages. The Act clearly states that a claim can only be brought by a relevant person. A relevant person is a consumer and they may make an application for a claim arising out of a contract between them and a trader. Further, that the Respondent must be a trader within the definition of the Act. A trader is defined in the Act as:
1 A trader--
(a) means a person who in trade or commerce--
(i) carries on a business of supplying goods or providing services; or
(ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and
(b) includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for--
(i) assigning or subletting the dwelling to someone else; or
(ii) a trade or business carried on by the tenant.
2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services--
(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or
(b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions.
The relevant Law
Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the Act”) states that:
When jurisdiction for minor civil dispute exercised
(1) 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.
(2) A relevant person may, as provided for in subsection (3), agree to limit the person's claim to the prescribed amount in order to bring the claim within the tribunal's jurisdiction for a minor civil dispute.
(3) A relevant person limits the person's claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
(4) In this section--
relevant person means--(a) for a claim to recover a debt or liquidated demand of money--a person to whom the debt is owed or money is payable; or
(b) subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader--the consumer; or
(c) for a claim arising out of a contract between 2 or more traders--any of the traders; or
(d) for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle--a person incurring loss because of the damage; or
(e) for a claim for repair of a defect in a motor vehicle under the Property Agents and motor Dealers Act 2000, section 248 or 324--the buyer of the vehicle; or
(f) for a tenancy matter--a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, , may apply to the tribunal for a decision in relation to the matter; or
(g) for a claim that is the subject of a dispute under the Dividing Fences Act 1953 --a party to the dispute.
I am satisfied that Mr Malcolm Tucker was an employed Solicitor of KRG Law during the relevant period and should not be a Respondent to the Claim. I am satisfied that the proper named Respondent should be the name of the law firm KRG Law and this was the relevant entity during the relevant period. The Applicant claims that the Respondent, in any form or by any name, is a law firm. The law firm that existed during the relevant period no longer exists. I am satisfied that on or around February 2010 the company KRG Conveyancing Pty Ltd was registered and the business name KRG Law was registered by that company on the 6 April 2010. Therefore this entity cannot be the proper Respondent as it did not exist during the relevant period. The Applicants contend that the Respondent, in any event, is a law firm, and as such, therefore, I find that the proper name of the Respondent should be KRG Law. I now turn my mind to the issue of jurisdiction.
The Respondent is a law firm that is carrying on a business that provides services. The Principal of a law firm acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. The Respondent is a company that is working within a profession, being a legal profession, and therefore the Respondent may supply services as part of his profession.
I am satisfied that the Respondent to this claim, being KRG Law is a business that is an occupation considered to be a profession and that this tribunal does not have jurisdiction to hear such matters.
Order:
1.That the claim be struck out for want of jurisdiction.
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