Weedon and Roberts v Place 57 Pty Ltd
[2021] QCAT 365
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- Unreported Judgment
- Weedon and Roberts v Place 57 Pty Ltd[2021] QCAT 365
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Weedon and Roberts v Place 57 Pty Ltd[2021] QCAT 365
Weedon and Roberts v Place 57 Pty Ltd[2021] QCAT 365
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Weedon and Roberts v Place 57 Pty Ltd [2021] QCAT 365 |
PARTIES: | EMMA JAREE WEEDON |
(applicant) | |
JAMES PETER ROBERTS | |
(applicant) | |
v | |
PLACE 57 PTY LTD ABN 14618698570 | |
(respondent) | |
APPLICATION NO/S: | MCDO00960-20 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 26 October 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Stroud |
ORDERS: | Application is dismissed due to lack of jurisdiction |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – consumer trader dispute - Queensland Civil and Administrative Tribunal Act 2009, schedule 3, “Trader”, 2(a) – MEANING AND EFFECT – whether real estate agent excluded from the definition of Trader – whether Tribunal has jurisdiction – whether matter can be dealt with as minor civil dispute – minor debt – whether claim for liquidated amount or damages. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 11, s 32 Bonel v Sutton & Anor [2013] QCAT 414. Butler v Corporate Consulting Services Pty Ltd [2012] QCAT 258. Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65. Davy v Ryter Planning Pty Ltd [2010] QCATA 96. Grommen v Hawes [2018] QCATA 49. Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87. Pegasus Equity Pty Ltd v Rhylando Pty Ltd [2012] QCAT 619. Pike v Rockhampton Optical Pty Ltd [2011] QCATA 200. Royce v Youi Pty Ltd [2018] QCAT 5, [125]. Singleton v KRG Conveyancing Centre trading as KRG Law [2010] QCAT 708. Tow.Com.Au Pty Ltd v Daniel Mudford [2016] QCAT 401. Pegasus Equity Pty Ltd v Rhylando Pty Ltd [2012] QCAT 619. Ziegler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78. |
APPEARANCES & REPRESENTATION: | |
Applicant: | Emma Weedon and James Roberts |
Respondent: | Simon Caulfield |
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 matter about?
- [1]On 11 February 2020, Ms Emma Weedon and Mr James Roberts (Owners) appointed Place 57 Pty Ltd as Real Estate Agents (the Agent) to sell their property in Fortitude Valley. They allege that the Agent misrepresented its ability to sell the property for the desired price and within a specified time. The Owners claim that due to misrepresentation by the Agent, the Agents failure to provide services and failing to provide services with due care and skill, they have suffered loss in the amount of $24,697.50.
- [2]On 6 August 2020, the Owners filed in the Tribunal an application for minor civil dispute – consumer dispute claiming compensation from the Agent in the amount of $24,697.50.
- [3]The matter was heard before me on 1 July 2021 at which time I ordered that the parties file submissions as to whether a Real Estate Agent is a ‘trader’ as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), and whether the Tribunal has jurisdiction to hear the matter. The decision was to be determined on the papers.
- [4]Both parties filed submissions in compliance with the order made on 1 July 2021.
Is a Real Estate Agent (or Agency) excluded from the definition of ‘Trader’ in schedule 3 of the QCAT Act?
- [5]Section 11 of the QCAT Act gives the Tribunal jurisdiction to hear a claim arising out of a contract between a consumer and trader, or a contract between two (2) or more traders.
- [6]The Tribunal may only exercise jurisdiction in minor civil dispute matters if a “relevant person” has applied to the Tribunal to deal with the dispute. For a claim arising out of a contract between a consumer and a trader, the consumer is a “relevant person”.
- [7]Consumer is defined in Schedule 3 of the QCAT Act as an individual:
- (a)who buys or hires goods other than—
i. for resale or letting on hire; or
ii. in a trade or business carried on by the individual; or
iii. as a member of a business partnership; or
- (b)for whom services are supplied for fee or reward other than—
i. in a trade or business carried on by the individual; or
ii. as a member of a business partnership; or
- (c)who is or was the tenant of premises let to the individual as a dwelling other than for—
i. assigning or subletting the premises to someone else; or
ii. a trade or business carried on by the individual.
- [8]I am satisfied that the Owners fall within the definition of a consumer.
- [9]Trader is defined in Schedule 3 of the QCAT Act as:
- (a)a person who in trade or commerce—
i. carries on a business of supplying goods or providing services; or
ii. regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and
iii. includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for—
- assigning or subletting the dwelling to someone else; or
- a trade or business carried on by the tenant.
- (b)However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services—
iv. the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or
v. the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions.
- [10]
- [11]The finding that a real estate agent is excluded from the definition of Trader was confirmed in the QCAT Appeal decision of Grommen v Hawes,[7] where the Tribunal held that the provision of real estate services was a professional discipline as it was an intellectual activity for reward involving training, accreditation and adherence to professional standards.
- [12]The Owners submit the decision in Grommen is incorrect as it cited a case about a licensed valuer as precedent for the proposition that a real estate agent is not a trader for the purposes of the QCAT Act. The Owners submit that distinctions should be made between the two professions including the differences in the accreditation process which they claim is much more arduous for a valuer compared to a real estate agent.
- [13]The Owners dispute that a real estate agent acts in the exercise of a discipline that embraces intellectual activity, requires professional standards of competence training and ethics, as (in summary):
- (a)the certificate course is short in length;
- (b)there is no prequalification required;
- (c)there is no ongoing educational requirements; and
- (d)other decisions where the Tribunal has found the profession to not be a trader such as lawyers, medical professionals, surveyors, migration agents and podiatrists, all require significant and lengthy education, registration within an established board and required ongoing training.
- (a)
- [14]The Agent submits that a property agent (real estate agent) is excluded by the definition of trader in circumstances where a property agent is obliged to conduct his/her professional practice in accordance with the requirements of the Property Occupations Act 2014 (Qld) (POA), being legislation which provides mechanisms for handling complaints about property agents and to discipline them for unsatisfactory professional conduct or professional misconduct. The Agent further submits that when expressing an opinion as to price and strategy for sale of real property, the agent must apply the methodology and principles developed and accepted in the disciplines of property valuations and sales, being disciplines not ordinarily regarded as being within the field of trade or commerce.
- [15]The common theme in the Tribunal decisions where a profession has been found to be excluded from the definition of a trader is a consideration of what is involved in undertaking a “discipline”, because that is the wording of the exclusion.
- [16]It is therefore necessary to focus on what the exclusion for exercising a discipline means. The word ‘discipline’ connotes the regulation of an activity by a set of rules and/or a code of behaviour where the activity itself requires specialist expertise.
- [17]Whilst the process of obtaining a real estate agent’s licence may be less onerous than other professions found to be excluded from the definition of trader, it is still a profession that is governed by a code of conduct and professional practice requirements set out in the POA. Failure by a real estate agent to comply with legislative requirements can result in disciplinary action being taken against them.
- [18]I agree with the submissions of the Agent that the profession of a real estate agent requires an element of intellectual activity in the pricing and strategies for sale and applying methodology and principles developed in the disciplines of property valuations and sales.
- [19]Whilst the Tribunal is not bound to follow previous decisions of the Tribunal, I find no reason to depart from the findings in Grommen as I agree with the Appeal Tribunal’s decision that a real estate agent is excluded from the definition of Trader and that it is a discipline that requires intellectual activity for reward involving training, accreditation and adherence to professional standards.
- [20]As I have found the Agent to be excluded from the definition of trader in Schedule 3 of the QCAT Act, it follows that the Tribunal does not have jurisdiction to determine this matter as a consumer trader dispute.
Can the application be heard as a minor debt dispute?
- [21]For the sake of completeness, I have also considered whether the application can be heard as an application for a minor debt.
- [22]Section 11 of the QCAT Act also includes as a ‘minor civil dispute’ a claim for a minor debt. A minor debt claim is a claim to recover a debt or liquidated demand of money, up to the prescribed amount of $25,000.[8]
- [23]The natural meaning of a debt is an ascertained amount of money owed by one party to another. A debt should be contrasted with damages. Numerous Tribunal decisions at first instance have reviewed the various authorities describing what is and what is not a liquidated demand of money.[9]
- [24]A ‘debt’ or liquidated demand is, one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the court or tribunal, it is not liquidated.[10]
- [25]Generally, a claim is liquidated when the monetary sum representing the claim is ascertained or capable of being ascertained by calculation by the use of a formula.
- [26]Unliquidated damages are described in Tribunal Practice Direction 9 of 2010 as being, 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.
- [27]As the Owners claim is for damages for breach of the contract, the amount of which requires an assessment by the Tribunal involving the exercise of a discretion and/or opinion, it is not a claim for a liquidated amount.
- [28]As such it cannot be treated as a claim for a minor debt and it therefore follows that the Tribunal does not have jurisdiction to deal with the application.
Orders
- The Application is dismissed due to lack of jurisdiction.
Footnotes
[1]Singleton v KRG Conveyancing Centre trading as KRG Law [2010] QCAT 708; Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87.
[2]Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
[3]Davy v Ryter Planning Pty Ltd [2010] QCATA 96.
[4]Pike v Rockhampton Optical Pty Ltd [2011] QCATA 200.
[5]Butler v Corporate Consulting Services Pty Ltd [2012] QCAT 258.
[6]Grommen v Hawes [2018] QCATA 049.
[7] Ibid.
[8] QCAT Act Schedule 3 definition “prescribed amount”.
[9] Examples are: Royce v Youi Pty Ltd [2018] QCAT 5, [125]; Tow.Com.Au Pty Ltd v Daniel Mudford [2016] QCAT 401, [12]; Bonel v Sutton & Anor [2013] QCAT 414, [11]; Pegasus Equity Pty Ltd v Rhylando Pty Ltd [2012] QCAT 619.
[10] As the Deputy President explained in Ziegler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78.