Smith v Howard
[2014] QCAT 638
•22 November 2014
| CITATION: | Smith v Howard [2014] QCAT 638 |
| PARTIES: | Stephen James Smith (Applicant) |
| v | |
| Dean Howard (Respondent) |
| APPLICATION NUMBER: | MCDO255/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 11 August 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 22 November 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The claim is struck out for want of jurisdiction. |
| CATCHWORDS: | Minor civil dispute – minor debt – whether claim within jurisdiction of tribunal – whether a liquidated claim or a partnership dispute – objection by respondent to jurisdiction Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Stephen Smith |
| RESPONDENT: | Mr Dean Howard |
REASONS FOR DECISION
Mr Smith commenced these proceedings on 28 March 2013 in the form of a Minor Civil Dispute against the Mr Howard claiming $16,104.00 as a debt due under an agreement for the purchase of a motor boat known as “Four Winns”.
Mr Howard disputes the claim and states that he and Mr Smith entered into a partnership agreement to import motor vessels from the United States of America and to sell them for a profit. He challenges the claim based on the issue or jurisdiction.
These proceedings have had a lengthy litigation history, including application for substituted service, application for default orders, applications to set aside default decision, application for leave to be represented, an application for reopening and an application seeking leave to appeal. It is not necessary to canvass the content or outcome of those applications suffice to note the matter was successful on appeal, and an order was made that the order of the tribunal made on 3 October 2013 was set aside and the matter was remitted for hearing.[1]
[1] Howard v Smith [2014] QCATA 103.
Jurisdiction
The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 11.
A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.[3]
[3]Ibid s 12(4)(a).
In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.[4] The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person.[5]
[4]Ibid s 13(1).
[5]Ibid s 13(2)(a)(i).
The parties provided voluminous evidence to the tribunal including submissions, statutory declarations[6] and correspondences.[7]
[6]Exhibit 3.
[7]Exhibit 2.
Applicant’s evidence
Mr Smith alleges that he and Mr Howard had an agreement to purchase a vessel from the United States of America in or around February 2010. He claims they purchased the vessel with the intention of selling it for a profit. He said they procured a potential buyer for the vessel, however, prior to the vessel being sold Mr Howard used the vessel and blew the motor up.
Mr Smith said he discussed repair costs with Mr Howard and it was agreed that instead of selling the vessel, Mr Howard would retain the vessel and pay to Mr Smith one-half of the cost of the vessel.
Mr Smith stated that the purchase price of the vessel was $14,500.00 plus shipping charges to Australia of $7,896.00 and $9,812.00 of other costs, making the total cost of the vessel, landed in Australia and seaworthy, at $32,208.00.
Mr Smith claims that he is entitled to one-half of the cost of the vessel, and that the agreement was that he would be paid $16,104.00.
Respondent’s evidence
Mr Howard provided to the tribunal submissions and evidence to support his contention that he and Mr Smith were engaged in a business conducted by way of a partnership. He claims that they had an oral partnership agreement, which commenced in 2009, supported in writing and by their conduct. He said that the written part of their partnership agreement was reduced to a jointly prepared spreadsheet[8] reconciling the partnership accounts and emails[9] between the parties.
[8]Attached to Response and submissions filed 5 July 2013.
[9]Attached to Response and submissions filed 5 July 2013.
Mr Howard claims that he and Mr Smith jointly shared expenses and receipts. He says the emails exchanged between the parties support a finding that the parties were operating a partnership or a joint venture.
Mr Howard stated that he did not accept the offer of Mr Smith to purchase the vessel in dispute from the partnership. He claims that the parties have been unable to resolve their partnership dispute or dissolution of the partnership and in particular bringing the partnership to account.
Mr Howard provided a copy of Financial Statements for the Partnership prepared by Simons Livingston & Associates for the year ended 30 June 2013.[10]
[10]Exhibit 1.
Mr Howard alleges that the financial statement for the partnership indicates that the partnership suffered a loss from trading for the financial year ending 30 June 2013.
Mr Howard provided a copy of an email dated 19 April 2011[11] sent to Mr Smith and Mr Byrne. He said the email referred to their ‘importing’ business and its ‘failure’. In the email, he proposed to ‘conclude our joint venture’.
[11]Exhibit 2.
Findings
I find from the evidence, including the emails passing between the parties, the joint accounts and spreadsheet prepared jointly by the parties that they were involved in a business and a partnership purchasing vessels and vehicles with the intention of selling them for a profit and making money.
In particular, I find that the email dated 19 April 2011 sent by Mr Howard to Mr Smith[12] was a proposal by him to dissolve the partnership including what each of the parties retain, some items included the ‘Glastron, the Bayliner, GMC, the Mustang and Four Winns’. The email highlighted the amount of money that each of the partners would suffer by way of ‘loss’ and clearly refers to suggestions for the assets that each would retain under a resolution of their business or partnership between the parties.
[12]Exhibit 2.
On the evidence, it would be impossible to make a finding that this claim is a minor debt/liquidated debt, as defined under the QCAT Act.
I find that the facts of this case give rise to issues of the dissolution of a partnership and/or joint venture both at law, equity and/or under statute, which requires the bringing to account and the winding up.[13]
[13]Submissions annexed to application filed 5 July 2013, paragraphs [16] – [17].
The application does not fall within the minor civil debt jurisdiction of the tribunal and as such, the claim must be struck out. That is not to state that Mr Smith may not have a valid claim against Mr Howard, but this tribunal is not the appropriate forum for the matter to be heard and determined.
The order I propose to make is:
1. The claim is struck out for want of jurisdiction.
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