Whitty v Moller - [2022] QCAT 258

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Whitty v Moller [2022] QCAT 258

PARTIES:

MICHAEL WHITTY

(applicant)

V

EMMA MOLLER (BURTON)

(respondent)

APPLICATION NO/S:

MCDO277-22

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

5 July 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for a minor civil dispute – consumer/trader dispute filed 18 March 2022 is dismissed for want of jurisdiction pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

2. The applicant’s request to recast the dispute as an application for a minor civil dispute - minor debt is refused for want of jurisdiction pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – whether dog breeder a consumer – whether person to whom a dog supplied was a trader – whether claim could be recast as a minor debt – where claim for damages for breach of contract

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether proceedings should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s 12, s 13, s 47, s 62, s 95, sch 3

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Dey v Victorian Railways Commissioners [1949] 78 CLR 62
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Fox v Percy (2003) 214 CLR 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jampco Pty Ltd v Cameron (1985) 3 NSWLR 391
Markan v Bar Association of Queensland [2013] QSC 146
Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288
Solar Energy Australia Group Pty Ltd v Bannick [2013] QCATA 100
South Coast Automotive Group v Martin [2022] QCATA 69
Spencer v Commonwealth (2010) 241 CLR 118
Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161

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APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

The applicant, Mr Whitty, breeds and sells Labradoodle dogs.
On 18 January 2021, the respondent, Ms Moller, acquired the dog “Luna”[1] from Mr Whitty pursuant to the terms of a “Guardian Home Agreement” under which Ms Moller had agreed to home Luna but to make her available to Mr Whitty for future breeding purposes so that…

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: [2022] QCAT 258
Decision Date

CaseChat Overview and Summary

The matter of Whitty v Moller [2022] QCAT 258 involved a dispute between Michael Whitty, a dog breeder, and Emma Moller, who had acquired a Labradoodle dog named Luna from Mr Whitty under a Guardian Home Agreement. Mr Whitty filed an application for a minor civil dispute claiming $25,000 from Ms Moller for breach of the Agreement. Ms Moller resisted the application and sought a dismissal for want of jurisdiction. The legal issues were whether Mr Whitty was a consumer and Ms Moller a trader for the purposes of the tribunal’s jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and whether the claim could be recast as a minor debt.

The tribunal found that Mr Whitty was not a consumer and Ms Moller was not a trader because, at the time of the supply of Luna, neither party intended that Ms Moller would breed Luna in the course of a business. Therefore, the tribunal did not have jurisdiction to hear the dispute as a consumer/trader dispute. The tribunal also found that the claim was not for a debt or liquidated demand of money but was a damages claim for breach of contract that required an assessment of evidence. The claim could not be recast as a minor debt. The tribunal dismissed the application pursuant to section 47 of the QCAT Act for want of jurisdiction.

The tribunal ordered that the application for a minor civil dispute – consumer/trader dispute filed on 18 March 2022 was dismissed for want of jurisdiction. The tribunal also refused Mr Whitty’s request to recast the dispute as an application for a minor civil dispute - minor debt for want of jurisdiction.

Orders