Wilkie v Gosper; Gosper v Wilkie
[2012] QCATA 40
•21 February 2012
| CITATION: | Wilkie v Gosper; Gosper v Wilkie [2012] QCATA 40 |
| PARTIES: | Robert Alexander Wilkie (Applicant/Appellant in APL236-11 Respondent in APL360-11) |
| v | |
| John Hilton Gosper (Respondent in APL236-11 Applicant/Appellant in APL360-11) |
APPLICATION NUMBER: APL236-11; APL360-11
| MATTER TYPE: | Appeals |
HEARING DATE: 12 December 2011
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: 21 February 2012
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal in both appeals is refused.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where the parties agreed on the sum awarded for the landlord’s claim – whether the landlord can recover an additional sum on appeal APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – JURISDICTION – where a counter-claim was filed as a minor debt – where a counter-claim was not for a liquidated sum Queensland Civil and Administrative Tribunal Act2009, s 32, Schedule 3 Cachia v Grech [2009] NSWCA 232 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Gosper and his wife formerly leased commercial premises to Mr Wilkie. In December 2010, an Acting Magistrate sitting in his capacity as a Member of QCAT, heard Mr Gosper’s claim to recover monies he said were owed under the lease for rent and outgoings, interest and legal fees. Mr Wilkie made a counter-application for a sum he claimed to be the value of his fit out to the premises and damages for breach of the lease.
The Acting Magistrate awarded Mr Gosper the sum that he and Mr Wilkie agreed was owing under the lease during an adjournment of the hearing, and dismissed Mr Wilkie’s counter-application.
Both parties now seek leave to appeal the decision. Despite his agreement with Mr Wilkie at the hearing, Mr Gosper now seeks to recover a further sum for rates, interest and legal fees. Mr Wilkie wants the sum he must pay reduced by the amount he claimed in his counter-application for the fit out.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 13.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
For reasons which follow, neither party has persuaded me that they should have leave to appeal.
Mr Gosper’s claim for rates, interest and legal fees
The lease provided for annual rental increases, by agreement or, if no agreement was reached, by applying the latest CPI index published prior to the commencement of the rent year (cl 2). It also allowed the owner to invoice estimated outgoings monthly, to be adjusted at the end of the accounting period (12 month period from 1 July to 30 June) (cl 3).
Early in the hearing, Mr Wilkie conceded he did owe $3,568 in rent. The learned Acting Magistrate probed the prospects of settlement. Both were willing to talk further. The learned Acting Magistrate sought to assist them to resolve the matter by giving an indication of the approach he would take to Mr Gosper’s claim, if he were required to make a decision about it.
He heard argument from both parties about the relevant clauses of the lease and clarified the basis of Mr Gosper’s claim with him. He confirmed that Mr Gosper did not seek to increase the rent or adjust the outgoings for the years 2007/8; 2008/9 and 2009/10 until he issued the disputed invoice in late 2009. He questioned Mr Gosper about his claim for interest, given that delay, at 20% (cl 13(a)) for each accounting period from the beginning of that rent year.
Having heard some argument from both parties, he gave the following indications of his views:
(a) Because the lease stated an adjustment shall be made at the end of the accounting period, he considered the claim for adjusted outgoings could only be made for the last accounting period before Mr Gosper issued the invoice (12 months from 1 July 2008 to 1 June 2009) and from 1 July 2009 to the termination of the lease; and
(b) That he could not see any basis for claiming interest for any period before the invoice was issued.
When the hearing resumed, Mr Gosper asked the Acting Magistrate to make an order that Mr Wilkie pay him $3,612.28, on the basis of an agreement reached during their discussions. He made some statements about how they arrived at that figure. Although it is not entirely clear how they dealt with adjustments of outgoings or legal fees, the agreed figure did include an interest component. There was no suggestion by either party that they required a ruling on any aspect of Mr Gosper’s claim.
The amount was agreed between the parties. Mr Gosper requested an order in that sum. He did not seek to maintain any other aspect of his claim. He did not argue the agreement reached with Mr Wilkie should be invalidated.[5] There is no arguable case of error on the part of the learned Acting Magistrate. There is no other basis upon which leave might be granted.
[5] Harvey v Phillips (1956) 95 CLR 235.
Mr Wilkie’s counter-application for the fit out
The only issue upon which the parties did seek a ruling was Mr Wilkie’s counter-application. Mr Wilkie abandoned his claim for damages for breach of the lease but maintained his claim for $3,500 for the fit out.
The learned Acting Magistrate rightly questioned whether Mr Wilkie’s claim was a debt or liquidated claim. If it was not, QCAT did not have jurisdiction to entertain it, as it did not qualify under any other aspect of the definition of minor civil dispute.[6] Mr Wilkie could not demonstrate how his counter-application could be determined by QCAT.
[6] Queensland Civil and Administrative Tribunal Act 2009, Sch 3.
He claimed there was an agreement he would leave the fit out in place and, for this reason, he was entitled to compensation for its value. Mr Gosper conceded he agreed Mr Wilkie did not have to remove the fit out, but considered this to Mr Wilkie’s benefit and denied any agreement to pay. The learned Acting Magistrate observed the relevant clause of the lease (cl 24) allowed the tenant to remove the fixtures but did not allow the landlord to require the tenant to do so. Mr Wilkie did not need Mr Gosper’s agreement to leave the fixtures in place. If Mr Wilkie had removed the fit out, he would have to have made good any damage, a further cost to Mr Wilkie.
Importantly, Mr Wilkie did not allege that he and Mr Gosper agreed the value of the fit out would be set off against the amount Mr Wilkie owed under the lease. Nor did he allege that they agreed on the value of the fit out.
Given those facts, there was no error in the learned Acting Magistrate’s determination that QCAT could not entertain Mr Wilkie’s counter-application. There is no other basis upon which leave to appeal might be given.
If Mr Wilkie wishes to pursue a claim for compensation, he can commence proceedings in a court of competent jurisdiction. The decision to dismiss his counter-application does not prevent him doing so.
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