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Spannys Whitsunday Real Estate v Proserpine Youth Club Inc[2023] QCAT 171

Spannys Whitsunday Real Estate v Proserpine Youth Club Inc[2023] QCAT 171

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Spannys Whitsunday Real Estate v Proserpine Youth Club Inc [2023] QCAT 171

PARTIES:

SPANNYS WHITSUNDAY REAL ESTATE

(applicant)

v

PROSERPINE YOUTH CLUB INC

(respondent)

APPLICATION NO/S:

RSL173-21

MATTER TYPE:

Retail shop leases matter

DELIVERED ON:

18 May 2023

HEARING DATE:

17 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. The Notice of dispute filed on 21 September 2021 is dismissed for lack of jurisdiction.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – JURISDICTION – where a lessor claimed various amounts from a tenant under a lease – whether the Tribunal has jurisdiction to decide the dispute – whether the dispute was a ‘retail tenancy dispute’ under the Retail Shop Leases Act 1994 (Qld) – whether the lease was a ‘retail shop’ – whether the Tribunal had jurisdiction under the ‘minor civil dispute’ jurisdiction of the Tribunal – whether the lease was a contract between two traders – whether the lease was a contract between a consumer and a trader – whether there was a claim to recover ‘a debt or liquidated demand of money’ – whether the Tribunal had jurisdiction to decide one head of claim involving a liquidated demand when other heads of claim were outside the Tribunal’s jurisdiction

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 52, Schedule 3

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B, s 5C, s 5D, s 63, s 103

Retail Shop Leases Regulation 2016 (Qld), s 8, Schedule 1

A & CG Lee Pty Ltd v Collier & Anor [2019] QCAT 30

Alexander v Ajax Insurance Co Ltd [1956] VLR 436

C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61

Cameron Family Trust v Applikote Gold Coast Pty Ltd [2022] QCATA 136

Carpentaria Electrical Pty Ltd v Stipendiary Magistrate at Southport, unreported, Queensland Supreme Court, 24 September 1999

Financial Advisers Australia v Mooney & Anor [2016] QCATA 181

Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210

Hashfield v Gold Coast City Council [2020] QCATA 36

Rock Bottom Fashion Market Pty Ltd v Innes, Innes & H R & C E Griffiths Pty Ltd [1998] QCA 33

Rothenberger Australia Pty Ltd v Lumley General Insurance Ltd (2003) 58 NSWLR 288

Rothwells Ltd v Nommack (No 100) Pty Ltd [1990] 2 Qd R 85

Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40

Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    By a Notice of dispute – Retail Shop Leases Act 1994 filed on 21 September 2021 (Notice of dispute), the Applicant claimed against the Respondent various amounts totalling $9,319.75 together with ‘Court Costs’ (being the Tribunal filing fee) of $358.00.
  2. [2]
    The amounts claimed related to a written ‘Commercial Tenancy Agreement’ dated 1 March 2019 (the Lease) entered into between the Applicant, as ‘Lessor’, and the Respondent, as ‘Tenant’. The premises the subject of the Lease were identified in the Lease only by reference to the address ‘4 – 56 Main Street’ at Proserpine in the State of Queensland (the Premises). The Notice of dispute stated that the ‘Lease’ expired on 30 June 2021.
  3. [3]
    The amounts claimed by the Applicant comprised the following:
    1. (a)
      $4,000.00 being two months’ rent on the alleged basis that the keys for the Premises were not handed in on expiry of the tenancy;
    2. (b)
      three separate amounts alleged to be payable of $298.65 (broken exit light), $3,657.50 (painting of the Premises) and $620.00 (repair of damaged eaves) respectively by way of ‘Damages’; and
    3. (c)
      $743.60 for an alleged failure by the Respondent to service the air-conditioners at the Premises as required by the Lease. This allegation involved an alleged breach of a Special Condition that ‘Air Conditioners to be serviced annually’.[1]
  4. [4]
    A mediation conference to mediate the dispute was held on or about 12 November 2021. The parties did not resolve the dispute at the mediation conference. By a notice dated 15 November 2021 (the Referral Notice), issued pursuant to s 63 of the Retail Shop Leases Act 1994 (Qld) (the RSLA), the mediator referred the dispute to the Tribunal. The Referral Notice stated that the dispute was within the Tribunal’s jurisdiction.
  5. [5]
    An oral hearing of the dispute took place in the Tribunal on 17 March 2023. During the course of the hearing, the Tribunal raised the question of whether the Tribunal had jurisdiction to decide the dispute. At the conclusion of the hearing, the Tribunal made directions that the parties may file submissions in relation to the issue of jurisdiction.
  6. [6]
    The Respondent filed written submissions on 31 March 2023. In substance, the Respondent submitted that:
    1. (a)
      it did not believe that the Tribunal had jurisdiction to hear the matter under the RSLA;
    2. (b)
      as to whether the Tribunal had jurisdiction to deal with the matter as a minor civil dispute, it would ‘defer’ to the Tribunal in this regard.
  7. [7]
    The Applicant (by Mr Spann) filed written submissions, dated 30 March 2023, which stated:
  1. (a)
    We note that the Application was made to QCAT to hear this matter as a Retail Shop Lease Dispute.
  1. (b)
    The Respondent has noted on their documents that the Lease is a Commercial Tenancy Agreement and not a Retail Shop Lease. Given the use of the premises is for a commercial office, this is the correct document that has been used to provide the written agreement between the parties.
  1. (c)
    I manage a number of shops, and some of these have been used for Retail Premises, and this was the only form that mentioned leasing (other than residential leasing) as such I was confused by the forms required to be lodged with QCAT. I also tried to obtain assistance from our local court, as the information on the QCAT website I found difficult to understand and was advised to proceed with the Application for Recovery of Rent under the rent the Retail Shop Leases Dispute.
  1. (d)
    I have now been made aware through this process that the dispute should have been a Minor Debt Dispute, as this is the correct jurisdiction of QCAT who has jurisdiction to hear and decide on this matter.
  1. (e)
    As such I would request the Tribunal, transfer the matter, and I can complete the miscellaneous matters form, or any other forms if required to transfer the matter to the Minor Debt Dispute.
  1. (f)
    Given the length of time that this matter has been progressing for, and the financial difficulty for me, regarding the non payment of rent and also the stress of the process, I am eager to have this matter finalized for both parties as soon as possible.
  1. (g)
    From my understanding of the process now I believe that there are no concerns as to the matter being heard as a Minor Debt Dispute.
  1. [8]
    In my view, there is a threshold question of whether the Tribunal has jurisdiction to decide this dispute on one of the following bases:
    1. (a)
      pursuant to the RSLA; or
    2. (b)
      within the ‘minor civil dispute’ jurisdiction of the Tribunal.
  2. [9]
    The Tribunal has jurisdiction to decide questions of jurisdictional fact ‘as an essential preliminary to the exercise of its substantive jurisdiction’.[2]

Does the Tribunal have jurisdiction under the RSLA?

  1. [10]
    The Tribunal has jurisdiction to hear ‘retail tenancy disputes’. Section 103 of the RSLA provides:
  1. (1)
    QCAT has jurisdiction to hear retail tenancy disputes, other than a retail tenancy dispute—
  1. (a)
    about an issue between the parties that—
  1. (i)
    is the subject of arbitration; or
  1. (ii)
    has been the subject of an interim or final award in an arbitration proceeding; or
  1. (iii)
    is before, or has been decided by, a court; or
  1. (b)
    about—
  1. (i)
    the amount of rent payable under a retail shop lease; or
  1. (ii)
    the amount of a lessor’s outgoings under a retail shop lease; or
  1. (c)
    if the amount, value or damages in dispute is more than the monetary limit within the meaning of the District Court of Queensland Act 1967, section 68; or
  1. (d)
    under a retail shop lease for the carrying on of the business of a service station, if the Competition and Consumer (Industry Codes—Oilcode) Regulation 2006 (Cwlth) applies to the carrying on of the business under a fuel re-selling agreement within the meaning of that regulation.
  1. (2)
    However, QCAT has jurisdiction to hear a retail tenancy dispute about—
  1. (a)
    the procedure for the determination of rent payable under a retail shop lease, but not the actual amount of the rent; or
  1. (b)
    the basis on which the lessor’s outgoings are payable by, and the procedure for charging the lessor’s outgoings to, a lessee under a retail shop lease, but not the actual amount of the outgoings; or
  1. (c)
    whether an item, or part of an item, of the lessor’s outgoings for the retail shopping centre or leased building in which a leased shop is situated was reasonably incurred in, or directly attributable to, the operations, maintenance or repair of the centre or building.
  1. (3)
    For subsection (1)(a)(i), a retail tenancy dispute is only the subject of arbitration if the arbitration proceeding has started.
  1. [11]
    The phrase ‘retail tenancy dispute’ is defined in the RSLA to mean:

any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into.

  1. [12]
    ‘Leased shop’ is defined to mean:

the retail shop leased, or to be leased, under a retail shop lease.

  1. [13]
    ‘Retail shop lease’ is defined by reference to s 5A of the RSLA. Subsection 5A(1) provides that:

A retail shop lease is a lease of a retail shop.

A number of exceptions to what constitutes a ‘retail shop lease’ are contained in subsections 5A(2) and (3).

  1. [14]
    ‘Retail shop’ is defined by reference to s 5B of the RSLA. Section 5B provides:

Retail shop means premises that are —

  1. (a)
    situated in a retail shopping centre; or
  1. (b)
    used wholly or predominantly for the carrying on of a retail business.
  1. [15]
    In the present case, the initial question is whether either limb of the definition of ‘retail shop’ is satisfied.

Were the Premises situated in a retail shopping centre?

  1. [16]
    ‘Retail shopping centre’ is defined by reference to s 5D of the RSLA. Section 5D provides:

A retail shopping centre is a cluster of premises having all of the following attributes—

  1. (a)
    5 or more of the premises are used wholly or predominantly for carrying on retail businesses;
  1. (b)
    all the premises—
  1. (i)
    are owned by the 1 person; or
  1. (ii)
    have the 1 lessor or head lessor, or, if the premises were leased, would have the 1 lessor or head lessor; or
  1. (iii)
    comprise lots within a single community titles scheme under the Body Corporate and Community Management Act 1997;
  1. (c)
    all the premises are located in—
  1. (i)
    1 building; or
  1. (ii)
    2 or more buildings if—
  1. (A)
    the buildings are adjoining; or
  1. (B)
    if the premises are owned by the 1 person—the buildings are separated by common areas or other areas owned by the owner or a road; or
  1. (C)
    if the premises are not owned by the 1 person—the buildings are separated by common areas or a road;
  1. (d)
    the cluster of premises is promoted, or generally regarded, as constituting a shopping centre, shopping mall, shopping court or shopping arcade.
  1. [17]
    As is evident from the terms of s 5D, all of the ‘attributes’ listed in that section need to be satisfied in order for the provision to apply.
  2. [18]
    On the evidence presented to the Tribunal, I find that the attribute set out in s 5D(a) is not established in the present case.
  3. [19]
    Mr Spann, the representative of the Applicant, gave evidence that the Premises comprised one of three tenancies in a single building. The Applicant’s real estate agency business comprised one of the tenancies with another named ‘Community Solutions’ whose operations Mr Spann described as ‘job finding’. While I am satisfied that the three premises formed a ‘cluster of premises’ in one building, this fails to satisfy the requirement that there be 5 or more premises used wholly or predominantly for carrying on retail businesses. I find that the Premises were not situated in a ‘retail shopping centre’ as defined in the RSLA.
  4. [20]
    The next issue is whether the Premises were used wholly or predominantly for the carrying on of a retail business.
  5. [21]
    ‘Retail business’ is defined by reference to s 5C of the RSLA. Section 5C provides:

Retail business means a business prescribed by regulation as a retail business.

  1. [22]
    The regulation referred to in s 5C is the Retail Shop Leases Regulation 2016 (Qld) (the Regulation).
  2. [23]
    Section 8 of the Regulation provides:
  1. (1)
    For section 5C of the Act, a business is a retail business if —
  1. (a)
    it is a business mentioned in schedule 1; or
  1. (b)
    its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in schedule 1.
  1. (2)
    The wholesale sale of goods is not a retail business.
  1. [24]
    Schedule 1 to the Regulation is headed ‘Businesses, goods or services’ and lists various items in the Schedule.
  2. [25]
    The unchallenged evidence of Mr Egelstaff, who appeared as the representative of the Respondent, was that the Respondent was a charity registered with the Australian Charities and Not-for-profits Commission and the Respondent did not sell products or carry on any retail operations.
  3. [26]
    In my view, on the basis of that evidence, the Premises were not used wholly or predominantly for the carrying on of a retail business. The work of a charity is not listed in Schedule 1. Further, I find that the whole or predominant activity of the Respondent was not, nor was it not a combination of, the sale, hire or supply of goods or services mentioned in Schedule 1.
  4. [27]
    For the above reasons, I am of the view that:
    1. (a)
      the Premises were not a ‘retail shop’ within the meaning of the RSLA;
    2. (b)
      because the Premises were not a ‘retail shop’, the Lease was not a lease of a retail shop within the meaning of the RSLA;
    3. (c)
      by reason of subparagraphs (a) and (b) above, the dispute the subject of the Notice of dispute was not a dispute under or about a retail shop lease or about the use or occupation of a leased shop under a retail shop lease and, therefore, it was not a ‘retail tenancy dispute’ within the meaning of the RSLA; and
    4. (d)
      the Tribunal does not have jurisdiction to hear the dispute pursuant to s 103 of the RSLA.
  5. [28]
    That leaves the question of whether the Tribunal has jurisdiction to deal with the dispute as a minor civil dispute.

Does the Tribunal have jurisdiction to decide the dispute as a minor civil dispute?

The relevant statutory provisions

  1. [29]
    The Tribunal’s original jurisdiction includes the jurisdiction conferred on the Tribunal by s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).[3]
  2. [30]
    Section 11 provides that the Tribunal has jurisdiction to hear and decide a ‘minor civil dispute’.
  3. [31]
    The phrase ‘minor civil dispute’ is defined in Schedule 3 to the QCAT Act as follows:

1 Minor civil dispute means—

  1. (a)
    a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or
  1. (c)
    a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or
  1. (d)
    a tenancy matter; or
  1. (e)
    a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or
  1. (f)
    a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.

Note—

A matter mentioned in paragraph (f) would relate to part of a barrier for a swimming pool along a common boundary.

2 However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

3 A claim mentioned in paragraph 1(b) does not include a claim in a proceeding to which the Fair Trading Act 1989, section 50A applies.

4 A claim mentioned in paragraph 1(a) does not include a claim under the Fair Work Act 2009 (Cwlth), section 539.

Note—

See the Fair Work Act 2009 (Cwlth), section 539 for the conferral of jurisdiction on eligible State or Territory courts in relation to the contravention of civil remedy provisions under that Act. In relation to Industrial Magistrates Courts, see the Industrial Relations Act 2016, chapter 11, part 3, division 4. In relation to Magistrates Courts, see the Magistrates Courts Act 1921.

  1. [32]
    In my view, it is appropriate to consider whether the dispute falls within the scope of one of the following ‘claims’ identified in the definition of ‘minor civil dispute’:
    1. (a)
      a claim arising out of a contract between 2 or more traders that is for payment of money of a value not more than the prescribed amount;
    2. (b)
      a claim arising out of a contract between a consumer and trader[4] that is for payment of money of a value not more than the prescribed amount;
    3. (c)
      a claim to recover a debt or liquidated demand of money of up to the prescribed amount.
  2. [33]
    The prescribed amount is $25,000.00.[5] The total amount claimed by the Applicant is less than the prescribed amount.

Did the claim arise out of a contract between 2 traders?

  1. [34]
    Schedule 3 to the QCAT Act defines ‘trader’ to mean:

1 A trader—

  1. (a)
    means a person who in trade or commerce—
  1. (i)
    carries on a business of supplying goods or providing services; or
  1. (ii)
    regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and
  1. (b)
    includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for—
  1. (i)
    assigning or subletting the dwelling to someone else; or
  1. (ii)
    a trade or business carried on by the tenant.

2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services—

  1. (a)
    the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or
  1. (b)
    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.
  1. [35]
    Assuming for present purposes that the Applicant is a ‘trader’ within the meaning of the RSLA, the question is whether the Respondent was also a trader. The Respondent was a charity providing activities for local youth. I consider this to be a purpose beneficial to the community. As noted above, the Respondent did not sell products or carry on any retail operations. In my view, the Respondent was not, in trade or commerce, carrying on a business of supplying goods or providing services nor am I satisfied that, in trade or commerce, it regularly held itself out as ready to supply goods or to provide services of a similar nature. Consequently, I find that the evidence does not establish that the Respondent is a ‘trader’ and the Lease does not constitute a contract between 2 traders.

Did the claim arise out of a contract between a consumer and trader?

  1. [36]
    Schedule 3 to the QCAT Act defines ‘consumer’ to mean:

… an individual—

  1. (a)
    who buys or hires goods other than—
  1. (i)
    for resale or letting on hire; or
  1. (ii)
    in a trade or business carried on by the individual; or
  1. (iii)
    as a member of a business partnership; or
  1. (b)
    for whom services are supplied for fee or reward other than—
  1. (i)
    in a trade or business carried on by the individual; or
  1. (ii)
    as a member of a business partnership; or
  1. (c)
    who is or was the tenant of premises let to the individual as a dwelling other than for—
  1. (i)
    assigning or subletting the premises to someone else; or
  1. (ii)
    a trade or business carried on by the individual.
  1. [37]
    The term ‘individual’ is not defined in the QCAT Act. However, it is defined in Schedule 1 to the Acts Interpretation Act 1954 (Qld) to mean a natural person.
  2. [38]
    Plainly, the Respondent is not a natural person and, consequently, cannot be a ‘consumer’ as defined. As a consequence, I find that the evidence does not establish that the Lease was a contract between a consumer and a trader.

Was there a claim to recover a debt or liquidated demand of money of up to the prescribed amount?

The relevant principles

  1. [39]
    It is the nature of the claim, rather than its prospects of success, that determines jurisdiction; the claim must in law be a debt or liquidated demand, merely claiming a specific amount is not conclusive.[6]
  2. [40]
    Even if a plaintiff (an applicant) frames as a liquidated demand a claim which is not of that kind and manages to obtain judgment by default for the whole amount claimed, the judgment will be regarded as irregularly obtained and will be set aside.[7]
  3. [41]
    A ‘debt’ has been described as ‘a liquidated sum in money presently due, owing and payable by a person, called the debtor, to another person called the creditor’.[8]
  4. [42]
    A claim is a ‘liquidated demand’ ‘... whenever the amount to which the plaintiff is entitled ... can be ascertained by calculation or fixed by any scale of charges, or other positive data’[9] or if it ‘does not require any exercise of judicial fact-finding or discretion to crystallise it or to arrive at a definite finding of quantum’.[10] Examples of a liquidated demand include claims known as ‘quantum meruit’ or ‘quantum valebat’ claims.[11]

The nature of the respective heads of claim

  1. [43]
    In my view, the respective amounts claimed as identified in paragraphs 3(b) and 3(c) above constituted unliquidated claims being claims for unliquidated damages for breach of contract (the Lease) and do not constitute a ‘debt’ or ‘liquidated demand in money’ within the meaning of the definition of ‘minor civil dispute’. Determination of those heads of claim cannot be ascertained by calculation or fixed by any scale of charges or other positive data and requires an exercise of fact finding to crystallise the quantum. Consequently, in my view, the Tribunal has no jurisdiction to decide the heads of claim for those amounts.
  2. [44]
    The next issue is whether the amount claimed as identified in paragraph 3(a) above constitutes a ‘debt’ or ‘liquidated demand in money’. If so, further issues arise as to whether the Tribunal has jurisdiction to decide only that aspect of the claim and, if so, whether it should deal with that aspect of the claim or transfer the dispute to a court of competent jurisdiction.
  3. [45]
    The Applicant’s case was that the keys to the Premises were not returned at all, in circumstances where they were due to be returned on expiry of the monthly tenancy on 30 June 2021. Rather, keys to the Premises were located in about the second or third week of August 2021. The Applicant claimed rent for the months of July and August 2021. This aspect of the claim was disputed by the Respondent on the basis that the keys were returned to the Applicant’s real estate agency on 9 July 2021.
  4. [46]
    For the reasons that follow, I consider that the claim of $4,000.00 was a claim for a liquidated demand in money comprising mesne profits based on the monthly rent for the Premises.
  5. [47]
    In Yankee Doodles Pty Ltd v Blemvale Pty Ltd,[12] Atkinson J said the following:[13]

Mesne profits are the damages for which the defendant is liable for the wrongful occupation of the plaintiff's land. The measure of loss is the profit which the plaintiff would have made if it had not been for the defendant's wrongful occupation. They are calculated over the period for which the plaintiff can prove a right to possession. Mesne profits therefore cover the whole period of the defendant's possession. They are in this case quantified in terms of the rental value of the land and the premises for the period of the defendant's wrongful occupation. A claim for mesne profits is liquidated if the claim specifies the rate of rent and if the profits are calculated as lost rent. Where the rental value claimed is higher than the actual rent, the plaintiff's claim would not be a liquidated claim and an interlocutory judgment would have to be entered in default of appearance …

(citations omitted, underlining added)

  1. [48]
    In my view, the conclusion expressed by her Honour is consistent with the observations of Dowsett J in Rock Bottom Fashion Market Pty Ltd v Innes, Innes & H R & C E Griffiths Pty Ltd.[14]
  2. [49]
    I consider that this aspect of the Applicant’s claim is properly characterised as one based on the alleged wrongful occupation by the Respondent of the Premises following the expiry of the monthly tenancy on 30 June 2021. The measure of loss is quantified by the Applicant by reference to the rent that was payable as at the date of the expiry of the monthly tenancy. In these circumstances, I consider that the claim is one for mesne profits and is a liquidated demand of money.

Does the Tribunal have jurisdiction to decide (only) the mesne profits head of claim?

  1. [50]
    Although I consider that, of itself, the mesne profits head of claim is within the Tribunal’s jurisdiction, a further issue of jurisdiction arises in consequence of the Applicant also bringing the unliquidated claims which fall outside the Tribunal’s jurisdiction.
  2. [51]
    In Hashfield v Gold Coast City Council,[15] Member Gordon (sitting as the Appeal Tribunal) considered whether the Tribunal had jurisdiction to deal with a claim of $6,056.50, being a claim to recover a debt or liquidated demand of money, in circumstances where there was a further claim for $6,615.84 which was not such a claim and was not within the jurisdiction of the Tribunal.[16] Member Gordon decided that overall the claim before the Tribunal was not substantially within its jurisdiction and that it was correct for the Adjudicator to have dismissed the claim for want of jurisdiction. The Member expressed the following conclusion:[17]

I conclude therefore, that for the tribunal to have jurisdiction in this area, the application overall must be to recover a debt or a liquidated demand of money. If any substantial part of the claim is not to recover a debt or a liquidated demand of money and is not otherwise within the jurisdiction of the tribunal, then there is no jurisdiction to hear the application. Of course it is open to a party faced with this difficulty to abandon the part of the application which is outside the jurisdiction of the tribunal.

(citations omitted)

  1. [52]
    Hashfield has been followed by the Appeal Tribunal in Cameron Family Trust v Applikote Gold Coast Pty Ltd.[18]
  2. [53]
    Although, I have some reservations about the conclusion expressed in Hashfield having regard to, in particular, the operation of each of subsections 52(1) and 52(2) of the QCAT Act (acknowledging that s 52(2) adopts the term ‘matters’), it is unnecessary to further consider this issue because I am of the view that I am bound by the above decisions, being decisions of the Appeal Tribunal.
  3. [54]
    In the present case, the combined quantum of the heads of claim comprising unliquidated damages ($4,576.15) exceeds the liquidated demand of $4,000.00. In those circumstances, consistently with Hashfield, I find that, overall, the claim before the Tribunal is not substantially within its jurisdiction and it has no jurisdiction to determine the Notice of dispute.
  4. [55]
    For completeness, had I concluded that the Tribunal did have jurisdiction to deal with the mesne profits head of claim, I would have considered it appropriate to transfer the whole of the dispute (including that head of claim) to a court of competent jurisdiction (the Magistrates Court) pursuant to s 52(1) of the QCAT Act.[19] I consider that not only is it appropriate that all of the Applicant’s heads of claim should be heard together given that they all relate to the Lease, I also note that the Respondent seeks to claim the sum of $2,571.25 which was alleged to be the Applicant’s portion of repairs caused to be carried out by the Respondent to the Premises as a result of what was said to be faulty ceiling repair previously done by the Applicant after Cyclone Debbie. This should be considered in conjunction with the Applicant’s claims. In short, I would have decided that all of the amounts claimed by the Applicant (both liquidated and unliquidated) and the Respondent’s claim (be it a defence of set-off or a counterclaim)[20] be determined in the one proceeding.

Conclusion

  1. [56]
    For the above reasons, I find that the Tribunal has no jurisdiction to decide the dispute under s 11 of the QCAT Act.

Order

  1. [57]
    The Notice of dispute filed on 21 September 2021 is dismissed for lack of jurisdiction.

Footnotes

[1]  The Respondent disputed that it had failed to service the air-conditioners.

[2] Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd [2023] QSC 40, [63] (Kelly J).

[3]  Section 10(1)(a) of the QCAT Act.

[4]  See A & CG Lee Pty Ltd v Collier & Anor [2019] QCAT 30, [32]-[33] (Senior Member Brown). See also Cameron Family Trust v Applikote Gold Coast Pty Ltd [2022] QCATA 136, [8] (Member PG Stilgoe OAM).

[5]  See the definition of ‘prescribed amount’ in Schedule 3 to the QCAT Act.

[6] Financial Advisers Australia v Mooney & Anor [2016] QCATA 181, [12] per Justice Carmody, President.

[7] Rothenberger Australia Pty Ltd v Lumley General Insurance Ltd (2003) 58 NSWLR 288, [27] per Barrett J, citing Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210.

[8] Rothwells Ltd v Nommack (No 100) Pty Ltd [1990] 2 Qd R 85, 86 per McPherson J (as he then was).

[9] Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, [142] per Knox CJ and Starke J.

[10] C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 61, [6] per Dr J R Forbes, Member.

[11] Alexander v Ajax Insurance Co Ltd [1956] VLR 436, 455 per Sholl J; Carpentaria Electrical Pty Ltd v Stipendiary Magistrate at Southport, unreported, Queensland Supreme Court, 24 September 1999, [34] per White J (as she then was).

[12]  [1999] QSC 134.

[13]  At [8].

[14]  [1998] QCA 33, 12-13.

[15]  [2020] QCATA 36.

[16]  At [51]-[70].

[17]  At [69].

[18]  [2022] QCATA 136, [8].

[19]  I consider that if the Tribunal does not have jurisdiction to decide the dispute (that is, to exercise its substantive jurisdiction), it does not have jurisdiction to make such an order.

[20] It is unnecessary to decide between the two.

Close

Editorial Notes

  • Published Case Name:

    Spannys Whitsunday Real Estate v Proserpine Youth Club Inc

  • Shortened Case Name:

    Spannys Whitsunday Real Estate v Proserpine Youth Club Inc

  • MNC:

    [2023] QCAT 171

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    18 May 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A & C G Lee Pty Ltd v Collier [2019] QCAT 30
2 citations
Jump To
Cite 1 - [2019] QCAT 30
Cite 2 - [2019] QCAT 30
Alexander v Ajax Insurance Co. Ltd. (1956) VLR 436
2 citations
Jump To
Cite 1 - (1956) VLR 436
Cite 2 - (1956) VLR 436
C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye [2022] QCATA 61
2 citations
Jump To
Cite 1 - [2022] QCATA 61
Cite 2 - [2022] QCATA 61
Cameron Family Trust v Applikote Gold Coast Pty Ltd [2022] QCATA 136
3 citations
Jump To
Cite 1 - [2022] QCATA 136
Cite 2 - [2022] QCATA 136
Cite 3 - [2022] QCATA 136
Financial Advisers Australia v Mooney [2016] QCATA 181
2 citations
Jump To
Cite 1 - [2016] QCATA 181
Cite 2 - [2016] QCATA 181
Gemini Property Investments v Woodards Investments (2000) SASC 210
2 citations
Jump To
Cite 1 - (2000) SASC 210
Cite 2 - (2000) SASC 210
Hashfield v Gold Coast City Council [2020] QCATA 36
2 citations
Jump To
Cite 1 - [2020] QCATA 36
Cite 2 - [2020] QCATA 36
Rock Bottom Fashion Market Pty Ltd v H.R. & C.E. Griffiths Pty Ltd [1998] QCA 33
2 citations
Jump To
Cite 1 - [1998] QCA 33
Cite 2 - [1998] QCA 33
Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288
2 citations
Jump To
Cite 1 - (2003) 58 NSWLR 288
Cite 2 - (2003) 58 NSWLR 288
Rothwells Ltd v Nommack (No 100) Pty Ltd[1990] 2 Qd R 85; [1988] QSC 167
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 85
Cite 2 - [1990] 2 Qd R 85
Spain v Union Steamship Co. of New Zealand Ltd. (1923) 32 CLR 138
2 citations
Jump To
Cite 1 - (1923) 32 CLR 138
Cite 2 - (1923) 32 CLR 138
Wagners Properties Pty Ltd v Atlas House Removers Pty Ltd(2023) 13 QR 580; [2023] QSC 40
2 citations
Jump To
Cite 1 - [2023] QSC 40
Cite 2 - [2023] QSC 40
Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134
2 citations
Jump To
Cite 1 - [1999] QSC 134
Cite 2 - [1999] QSC 134

Cases Citing

Case NameFull CitationFrequency
Walsh Accountants Pty Ltd v Tonge [2023] QCAT 4672 citations
1

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