Wise v Singh

[2016] QCATA 148

CITATION: Wise v Singh [2016] QCATA 148  

PARTIES:	Carly Wise (Applicant/Appellant)
v
Vineel Singh (Respondent)

APPLICATION NUMBER: APL102 -16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 10 October 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – Queensland civil practice – Queensland Civil and Administrative Tribunal – jurisdiction and procedure – debt or liquidated demand – where claim for compensation for failure to enter into partnership – where applicant claimed contract existed – where tribunal found no contract existed – where applicant filed minor debt claim – where tribunal found claim not a minor debt – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 12, 142

Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Rothenberger v Poulsen (2003) 58 NSWLR 288
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Ziegler /t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Vineel Singh is a dentist. Carly Wise is a dental hygienist. In late 2014, the parties started discussing going into partnership for a dental practice. Ms Wise started preparing for the partnership but in November 2014, her application for finance, which she needed to enter into the partnership, was refused. In January 2015, Mr Singh told Ms Wise he no longer wanted to enter into a partnership with her.

2. Ms Wise then sent Mr Singh an invoice for $24,500, representing the work she had done to set up the partnership. Mr Singh refused to pay so Ms Wise filed a minor debt claim. The tribunal dismissed Ms Wise’s claim on the basis that it was not a minor debt and, therefore, the tribunal had no jurisdiction to hear the dispute.

3. Ms Wise wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

4. Ms Wise has one submission: that the tribunal erred in finding that it had no jurisdiction. Ms Wise contends that her claim is a liquidated demand which is within the jurisdiction of the tribunal.

5. The tribunal in its minor civil disputes jurisdiction can hear and determine a claim to recover a debt or liquidated demand.[3] Ms Wise points out that the tribunal has said that a claim is a ‘liquidated demand’ if it is capable of being ascertained through the use of a formula.[4] She says that she provided evidence to the tribunal as to the formula and, therefore, her claim is within jurisdiction.

   [3]QCAT Act s 12(4)(a).

   [4]Ziegler /t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78.

6. Ms Wise referred the tribunal to the High Court decision of Spain v Union Steamship Co of New Zealand Ltd[5] as support for the proposition that, if the amount is capable of being calculated, then it is a liquidated demand. That submission ignores the facts of Mr Spain’s claim: he was calling for compensation pursuant to a clause in the award under which he was paid. Although the compensation was for ‘reasonable expenses’, the expenses related to his appearance at an inquiry, which was ‘… a well-known form of inquiry sanctioned by the shipping laws…’[6]

   [5](1923) 32 CLR 138 at 142.

   [6]Ibid.

7. That approach  - that the demand must be calculable by reference to a formula - was confirmed by the New South Wales Supreme Court in Rothenberger v Poulsen[7], also referred to be Ms Wise:

   … “liquidated damages” are recoverable in satisfaction of a right of recovery created by the contract itself and accruing by reason of breach, while “unliquidated damages” are compensation as assessed by the court of loss occasioned by the breach

   [7](2003) 58 NSWLR 288 at 297-298.

1. The tribunal found that there was no contract between Ms Wise and Mr Singh. It could not, therefore, find that Ms Wise’ right to damages arose under, and was calculated by reference to, a contract.

1. I agree with the tribunal’s conclusion[8] that Ms Wise’s email of 24 February 2016 highlights the fact that her claim, if any, is not a liquidated claim pursuant to a contract but a claim for loss when negotiations went sour.

   [8]Transcript page 1-37, line 37 to page 1-38 line 9.

1. No doubt Ms Wise continues to argue that she had a contract with Mr Singh. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[9]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[10] 

   [9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [10]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. I read the transcript carefully. I have considered the evidence before the tribunal. The evidence can support a finding that there was no contract between the parties and I can find no compelling reason to come to a different view.

1. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.