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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lucas v Habul  QCATA 53
APL252-18 (appeal); APL311-18 (cross appeal)
MCDO 357/18 (Southport)
8 April 2020
On the papers
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – restrictions on the minor civil dispute jurisdiction of the tribunal – whether the tribunal has jurisdiction to deal with a minor civil dispute on a quantum meruit – whether the claim is a building dispute and if so whether the pre-action QBCC conciliation has taken place – whether the tribunal has jurisdiction to deal with a building dispute as a minor civil dispute if it is a claim to recover a debt or liquidated demand of money – whether the tribunal has general jurisdiction to make a fair order in any claim of up to $25,000
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 11, s 13
Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)
Alexander v Ajax Insurance Co Ltd  VLR 436
Hashfield v Gold Coast City Council  QCATA 36
Lagos v Grunwaldt  1 KB 41
Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords  QCAT 122
New Image Beauty Salons Pty Ltd v Dewar and Anor  QCATA 217
Skinner v FTP Contracting Pty Ltd & Anor (No 2)  QCATA 12
Solahart Mackay & Ors v Summers  QCATA 113
Self-represented but assisted by Gold Coast Community Legal Centre
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
- This is an appeal by Assunta Lucas in APL252-18, and a cross appeal by Harry Habul in APL311-18, from a decision made by an Adjudicator in a minor civil dispute. The decision was made in application MCDO 357/18 (Southport).
- That application was brought by Mr Habul against Ms Lucas. He claimed the sum of $11,593.43 from her plus the filing fee and service costs. He said that she had engaged him as a licensed builder, to carry out renovation work at her unit and promised to pay him for it. When defending the claim, although Ms Lucas admitted that work had been done, she said that Mr Habul had done the work in return for caring and support services she had provided to him. She denied she had promised to pay for the work.
- The matter came before an Adjudicator. The Appeal Tribunal has obtained a transcript of what happened at the hearing.
- The Adjudicator heard evidence from both parties and read documents submitted. The Adjudicator found that there was no formal contract between Mr Habul and Ms Lucas because they did not intend to be legally bound, and in any case the terms of the contract were too uncertain for there to be a legally binding agreement. The Adjudicator found that the value of the work done by Mr Habul was probably about $11,600 as he said, but that, to be fair, this should be offset by the value of the caring and support services he had received from Ms Lucas. So overall, it was fair to order Ms Lucas to pay $4,500 to Mr Habul. The Adjudicator ordered her to pay that amount within 90 days.
- The dispute was a small claim which was eminently suitable for resolution by the tribunal. However, at the hearing the parties were not aware of jurisdiction difficulties faced by the tribunal in doing so. The Adjudicator was however, aware of these difficulties and tackled them as follows. The Adjudicator decided that it would be fair for Ms Lucas to pay for the value of the work offset by the value of the services she had provided to Mr Habul. Since there was no contract between them, the claim could not be cast as a trader-consumer claim (for the tribunal to have jurisdiction over such a claim a contract is required). Instead, the claim would have to be dealt with as one in quasi contract or restitution, and assessed on a quantum meruit. The Adjudicator decided that a quantum meruit claim was a claim to recover a debt or liquidated demand of money, and on that basis the tribunal had jurisdiction to hear it. The offset for the value of the services Ms Lucas had provided to Mr Habul would be a set-off from the amount to be awarded to Mr Habul in his claim.
- In approaching the matter in that way, there is no doubt from the transcript that the Adjudicator was mindful of the tribunal’s obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and in accordance with the tribunal’s obligation to make orders in a minor civil dispute that it considers fair and equitable to the parties in order to resolve the dispute. The alternative was to send the parties away without any resolution, which would mean that if they wished to have their dispute resolved by independent determination they would need to have it heard either in the tribunal’s building list or in the Magistrates Court.
- But the truth is that although the claim was a simple one, it was riddled with jurisdiction issues, similar to those which arise in many such cases and which, on a daily basis, prevent the tribunal from achieving its objects.
- In this appeal two of the jurisdiction issues are expressly raised in the amended grounds of appeal submitted by Ms Lucas, and which are before me to consider whether leave should be given to amend. I do grant leave to rely on those amended grounds. The delay in providing these amended grounds of appeal is probably explained by the fact that they rely on recent tribunal authority and they have been prepared with recent legal assistance, and since the new grounds would have to be considered in this appeal anyway, granting leave does not prejudice the parties.
- Both sides in their respective appeals also say that the Adjudicator reached the wrong conclusion on the evidence, and Ms Lucas also raises matters of procedural fairness.
- Both sides in their respective appeals also attempt to put fresh evidence before the Appeal Tribunal. Ms Lucas has made a formal application to do so, which is also before me for determination. Mr Habul has not made a formal application. Neither party explains why this material was not available for the hearing. In any case, since the appeal has been determined on other grounds which restrain the tribunal from hearing the matter at all as a minor civil dispute, I refuse the application to put fresh evidence before the Appeal Tribunal.
- The jurisdiction issues need to be considered first, and since those are determinative of the appeal, I need not consider the other grounds of appeal.
- In this appeal I need to identify more precisely the way in which the Adjudicator concluded that the tribunal had jurisdiction to deal with the application. Firstly there are clear indications from the discussion at the hearing and from the Adjudicator’s oral reasons that the Adjudicator regarded the claim as one for recovery of a debt or liquidated demand of money, giving the tribunal jurisdiction to deal with it despite the absence of a contract between the parties which would have been necessary in a trader-consumer dispute.
- However, the Adjudicator did emphasise that the decision was based on the requirement to achieve a fair result. The Adjudicator expressly referred to section 3 of the QCAT Act, and possibly was also referring to section 13, requiring the tribunal to make orders which are fair to the parties in a minor civil dispute.
- In the reasons the Adjudicator said:
The tribunal finds that there is no legally binding agreement for the work to be performed: however, this is a jurisdiction that states that matters are to be decided in a way that is fair. It does not give rise to a broad, equitable jurisdiction, but equitable principles and principles of restitution, however murky, can be considered.
… It is open to the tribunal to find or to give consideration to indebitatus assumpsit or what has now been described as quasi contract. Or … more relevantly [the tribunal] can refer to restitution grounds, that is where a promise has been made that work would be performed and a promise has been made to pay … the party for that work … [and] the tribunal is satisfied that there should be an award in favour of the applicant.
The tribunal … is satisfied that services were performed by the respondent for the applicant, and on … [that] basis the … quantum of the claim [should be] … significantly reduced. This is a decision … based on fairness, as opposed to finding that there is a legally binding contract. This is a decision that firmly relies upon … section 3 of the QCAT Act.
- The jurisdiction issues which arise can be listed as follows. In this appeal, Ms Lucas raises (a), and (b). I have added (c) and I have added (d) because of the Adjudicator’s reliance on the tribunal’s obligation to make fair orders in a minor civil dispute. These issues are:
- (a)where an application is a ‘building dispute’ as defined in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and where the applicant has not gone through a conciliation process provided by the QBCC and required by section 77(2) of that Act, whether the tribunal is able to hear the application as a minor civil dispute (either as a claim to recover a debt or liquidated demand of money, or a trader-trader, or trader-consumer claim) or whether the requirement of section 77(2) applies to a building dispute before the tribunal even if it is, or appear to be, a minor civil dispute;
- (b)where an application is a ‘building dispute’ as defined in the QBCC Act whether it can be dealt with as a minor civil dispute if it is a claim to recover a debt or liquidated demand of money;
- (c)whether a claim based on a quantum meruit is a claim to recover a debt or liquidated demand of money, and therefore one which the tribunal has jurisdiction to hear and determine as a minor civil dispute; and
- (d)whether the tribunal has a general jurisdiction to make fair orders in any claim of up to $25,000.
- At the time when the Adjudicator made the decision, that is 5 September 2018, there was conflicting tribunal case law on points (a) and (b) and therefore uncertainty on those points. This continued into 2019. The tribunal’s current considered view on point (a) is given in Skinner v FTP Contracting Pty Ltd & Anor (No 2)  QCATA 12, , that the requirement in section 77(2) applies to all building disputes even if the application appears also to be a minor civil dispute as defined. This means that the tribunal will never have jurisdiction to hear a building dispute where the applicant has not complied with a process established by the Commission to attempt to resolve the dispute.
- There is no doubt that the application brought by Mr Habul was a building dispute. Mr Habul was a licensed builder at the time and had personally performed the work, although he may also have used sub-contractors. So this was a claim ‘relating to the performance of renovation of a home’. Therefore section 77(2) of the QBCC Act required him to comply with the process established by the Commission to attempt to resolve the dispute before making an application to the tribunal about it. Failure to do this meant that the tribunal had no jurisdiction to hear the application.
- Point (b) is a more obscure point. It arises over the wording of the definition of minor civil dispute in the QCAT Act where the tribunal is given jurisdiction by an enabling Act. This wording has caused an anomaly whereby a building dispute which is a claim to recover a debt or liquidated demand of money is outside the definition of a minor civil dispute, and so cannot be heard as one, nor resolved by an Adjudicator because an Adjudicator only has jurisdiction to hear a minor civil dispute.
- On the basis of the Adjudicator’s findings therefore that Mr Habul’s claim was a claim for recovery of a debt or liquidated demand of money, the Adjudicator would then have decided that the tribunal could not deal with it as a minor civil dispute because it was a building dispute. It is not surprising that the Adjudicator did not consider this because of the uncertainty about this issue at the time of the hearing.
- If I am right however, that Mr Habul’s claim was not a claim for the recovery of a debt or liquidated demand of money then jurisdiction point (b) falls away. This is because point (b) only arises where there is a claim to recover a debt or liquidated demand of money which is also a building dispute.
- For (c), the question is whether a quantum meruit claim is, and in particular Mr Habul’s claim was, a claim to recover a debt or liquidated demand of money.
- There is a line of authority holding that a claim for the reasonable price for goods or labour, where no price or rate has been fixed by the parties, is a liquidated claim. Since the Adjudicator expressly referred to indebitatus assumpsit when giving reasons, it would appear that the Adjudicator had this line of authority in mind.
- The English case of Lagos v Grunwaldt is part of that line of authority. In that case, a legal representative had sought to enter default judgment on a specially indorsed writ claiming payment for legal work. The Master gave conditional leave to defend and that was affirmed by a single judge on appeal. In the Court of Appeal, Farwell LJ sitting with Cozens-Hardy, Master of the Rolls, stated:
Two preliminary objections are taken. The first is that Order III, r 6, does not apply, because this is not a debt or liquidated demand arising under a contract. It is a claim on contract for quantum meruit. In my opinion that is within the rule. I think the words ‘debt or liquidated demand’ point to the old division of common law actions to be found in Bullen and Leake, 2nd ed, p 28. The old indebitatus counts ‘which have from time to time been rendered more and more concise are designated with little difference of meaning by the terms indebitatus counts, money counts or common counts; the expression common counts or common indebitatus counts being often used to designate those of most frequent recurrence, viz., where the debt is for goods sold and delivered, goods bargained and sold, work done, money lent, money paid, money received, interest, and upon accounts stated; and the expression money counts being sometimes used to particularize those for money lent, money paid, and money received. The most appropriate name seems to be indebitatus counts.’ And the learned authors go on to say, ‘there were also formerly in use counts known as quantum meruit and quantum valebat counts, which were adopted where there was no fixed price for work done or good sold, etc. These counts, however, have fallen into disuse, and have been superseded by the general application of the indebitatus counts.’ In my opinion that is the true view; everything that could be sued for under those counts comes within the description of debt or liquidated demand.
- In Alexander v Ajax Insurance Co Ltd  VLR 436, a decision of the Victorian Supreme Court, Sholl J reviewed the history and authorities dealing with the definition of ‘debt or liquidated demand’. He recited two definitions for ‘liquidated demand’. The first was in Odgers, Pleading & Practice and had been approved by the Australian High Court:
… whenever the amount to which the plaintiff is entitled (if he is entitled to anything) can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated or ‘made clear’. But an action in which the amount to be recovered depends upon all the circumstances of the case, and no one can say positively beforehand whether the plaintiff will recover a farthing, or forty shillings, or a hundred pounds, is an action for unliquidated damages.
- The second was in an article on damages written by the editor of Odgers in the Encyclopaedia of the Laws of England (1908) Vol IV:
Thus in an action on a bill of exchange or promissory note the amount of the verdict, if it be for the plaintiff at all, can be reckoned beforehand. But in an action of libel, it is open to the jury to award the plaintiff a farthing, or forty shillings or a hundred pounds; and no one can say beforehand what the precise figure will be.
- Sholl J pointed out that the definitions did not cover a claim for the payment of a reasonable price for goods or labour where no price or rate has been fixed by the parties, but which as in Lagos has been held to be a liquidated demand. Sholl J explained that there were ‘historical reasons’ for this, referring to the old counts available to a plaintiff which were referred to in Lagos.
- At page 445 Sholl J expressed the view having reviewed the authorities, that the best statement of the meaning of the expression ‘debt or liquidated demand (in money)’, as used in 1851, is that it covered any claim:
- for which the action of debt would lie;
- for which an indebitatus (or ‘common’) count would lie – including those cases formerly covered by the quantum meruit or quantum valebat counts, notwithstanding that the only agreement implied between the parties in such cases was for payment at a ‘reasonable’ rate;
- for which covenant, or special assumpsit, would lie, provided that the claim was for a specific amount, not involving in the calculation thereof elements the section whereof was dependent on the opinion of a jury.
- Sholl J continued:
In my opinion, subject to any specific inclusions or exclusions which the decisions of the Court may have made since 1852 to or from the area so delimited (as the case may be), that is still the meaning of the relevant expressions …
- Sholl J then pointed out that the type of case which he was dealing with in Alexander was one of the exclusions referred to, because insurance claims other than for ‘agreed value’ policies where there had been a total loss, or where there had been a conclusive adjustment of the claim, had always been treated as unliquidated damages claims.
- Overall, it is possible to conclude that courts and tribunals have departed from the old 1852 definition of the expression ‘debt or liquidated demand of money’ when it was right to do so, and bearing in mind that historically the words have been used to define the practical issue of when a default judgment can be entered, there has been greater freedom to depart from previous decisions. Since its inception in 2009, the tribunal has departed from the old definition, and has taken a strict view in the area of express or implied agreements for payment at a reasonable rate. Justice Alan Wilson, President, expressed this view in New Image Beauty Salons Pty Ltd v Dewar and Anor  QCATA 217, , and in particular in Solahart Mackay & Ors v Summers  QCATA 113,  where there was a claim by an employee for fair remuneration in the nature of a quantum meruit claim. Justice Wilson said that where the remuneration could not be calculated by reference to decided facts or data, it could not be shaped to fit within the accepted meaning of the term ‘debt or liquidated demand’. When considering the limits of its minor civil dispute jurisdiction the tribunal has followed this approach for many years.
- The tribunal’s position on this is described in the Practice Direction 9 of 2010. It describes unliquidated damages as follows:
Unliquidated damages is where a claim is made for a sum which cannot be determined without consideration, by the Tribunal, of the applicant’s evidence in support of the claim –for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.
- Practice Direction 9 of 2010 is concerned with section 50A of the QCAT Act which permits a decision by default where the claim is for unliquidated damages. Section 50A is to be contrasted with section 50, which permits a decision by default to be entered where the claim is one for a debt or liquidated demand of money.
- Sometimes the recoverable amount is sufficiently certain or able to be calculated from an undisputed formula that the claim is one to recover a debt or liquidated demand of money. An example was a claim for payment for work done where there was agreement to pay a fixed or flat daily rate of $1,100: Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords  QCAT 122, . However, Mr Habul’s claim was definitely not in that category because although his claim was based on a list of expenses with definite amounts, Ms Lucas did not agree this at any time.
- It follows that the tribunal did not have jurisdiction to determine Mr Habul’s claim on a quantum meruit basis as a minor civil dispute.
- As for jurisdiction point (d), jurisdiction is conferred on the tribunal to hear and decide a minor civil dispute by section 11 of the Act. The tribunal only has jurisdiction to hear a claim which falls within the definition of minor civil dispute in Schedule 3 of the Act.
- There is no additional jurisdiction conferred by section 13 of the QCAT Act. That section obliges the tribunal to make an order that it considers fair and equitable to the parties, in a proceeding for a minor civil dispute. If an application is not a minor civil dispute, then section 13 is not engaged. Section 13 is therefore engaged only if the tribunal already has jurisdiction to hear and determine the claim by section 11 as combined with Schedule 3 of the Act. The same applies to section 3 which sets out the objects of the Act and also requires the tribunal to deal with matters in a way that is fair. Neither of these sections confer any additional jurisdiction on the tribunal.
- In Hashfield v Gold Coast City Council  QCATA 36 I had reason to trace the legislative origins of the tribunal’s jurisdiction to hear a claim to recover a debt or liquidated demand of money. It is quite clear from the explanatory notes in the original QCAT Bill that the legislature simply intended to give the tribunal the jurisdiction previously exercised by the Magistrates Court minor debt claims simplified procedure and to give the tribunal the trader-trader and trader-consumer jurisdiction previous exercised by the Small Claims Tribunal. Despite the gaps in the tribunal’s jurisdiction which have resulted, there was no intention to give the tribunal jurisdiction fairly to resolve disputes in all small claims. Had that been intended, the tribunal could have been given jurisdiction over small claims similar to that which existed in the Court of Requests under the Small Debts Recovery Act (NSW) in 1846, and after several iterations passed to the newly formed Magistrates Court in 1922 for hearing by a justice or justices without a police magistrate.
- It follows that the minor civil dispute jurisdiction of the tribunal is not a general one fairly to hear and determine small claims. In its minor civil dispute jurisdiction, the tribunal only has jurisdiction to hear claims which are within the definition of a minor civil dispute in Schedule 3 of the Act.
Conclusions in the appeal
- The tribunal had no jurisdiction to hear and determine the application as a minor civil dispute, and it had no jurisdiction to hear it in its building list because there had been no attempt at section 77(2) conciliation. This means that it cannot simply be transferred to the building list.
- Leave to appeal is granted in APL252-18 and the appeal is allowed. The decision made on 5 September 2018 is set aside. Application MCDO 357/18 (Southport) is dismissed because the tribunal does not have jurisdiction to hear it. Leave to appeal in the cross appeal APL311-18 is refused. This means the cross appeal fails.
 See the definition of ‘minor civil dispute’ in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
 Section 3(b) of the QCAT Act.
 Section 13 of the QCAT Act.
 There are in fact three different versions of the amended grounds of appeal: amended application for leave to appeal or appeal filed on 22 January 2019, email of 28 May 2019 and a further application for leave to appeal document filed on 19 June 2019.
 The Adjudicator described the claim as a ‘minor debt claim’ during the discussion at transcript 1-20 line 22, 1-21 line 16, and in the reasons at transcript 1-28 line 37.
 Redding v Simmons  QCATA 100, ; Hartley v Di Russo  QCATA 46; Warren v Goldberg  QCATA 83, ; Hartigan v Quiroz-Jimenez  QCATA 95, ; Austin & Anor v One Off Projects & Anor  QCAT 326, ; LKB Holdings Pty Ltd v Gacayn  QCATA 13, ; Goldberg t/as Goldberg Constructions v Jogis  QCAT 49, ; Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor  QCAT 70, .
 The Adjudicator found that the work was ‘performed and arranged by’ Mr Habul: transcript 1-29 line 33, and this was in accordance with the evidence given at the hearing: transcript 1-10 line 42, and in Mr Habul’s statutory declaration of 24 July 2018.
 Combined effect of Schedule 1B section 4, and Schedule 2 of the QBCC Act. It was found by the Adjudicator however that there was no contract, so the claim was not a claim relating to a contract for such performance, which would be another definition of ‘building dispute’ which might otherwise have applied.
 The point is explained in Skinner, .
  1 KB 41, 48.
 Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, 142.
  VLR 436, 440-442.
 For example, Financial Advisers Australia v Mooney & Anor  QCATA 181,  (Justice Carmody).
  – .
 The jurisdiction described in section 7 of the Magistrates Courts Act 1921 (Qld) was to hear claims ‘for the recovery of any debt demand or damage (whether liquidated or unliquidated) or arising in a dispute or difference between partners, or in replevin or in interpleader, to an amount involved not exceeding (the financial limit)’, but not claims concerning title to land or validity of a testamentary disposition (section 4).
- Published Case Name:
Lucas v Habul
- Shortened Case Name:
Lucas v Habul
 QCATA 53
08 Apr 2020