McAllister v Gold Coast City Council
[2023] QCAT 348
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- McAllister v Gold Coast City Council[2023] QCAT 348
- Add to List
McAllister v Gold Coast City Council[2023] QCAT 348
McAllister v Gold Coast City Council[2023] QCAT 348
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McAllister v Gold Coast City Council [2023] QCAT 348 |
PARTIES: | paula mCallister (applicant) v gold coast city council (respondent) |
APPLICATION NO: | 512/22 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 28 August 2023 |
HEARING DATE: | 6 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Scott-Mackenzie |
ORDERS: |
|
CATCHWORDS: | JURISDICTION – whether Tribunal has jurisdiction to hear and decide the proceeding – whether claim for a minor civil dispute – whether claim for a debt or liquidated demand of money Queensland Civil and Administrative Tribunal Act 2009, s 11, schedule 3 Daniel & Anor v Townsville City Council [2018] QCATA 82 Hill v Berghofer [2011] QCATA 34 Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288 Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161 Ziegeler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr Marshall |
Respondent: | Mr Dudley |
REASONS FOR DECISION
Application
- [1]The applicant, on 22 May 2022, made application to the Tribunal for payment to her of $24,293.50 (application). The reasons why she says she is entitled to the amount claimed, set out in part C of the application, are couched in the following terms:
Gold Coast City Council owns two retaining walls which were built by the developer of Pacific Pines to form a storm water easement/overflow channel between 71 and 73 Galapagos Way. The natural ground was dug away a large pipe installed underground and then a low lying channel retained to maintain a causeway for drainage from the road. The council claims that, although they own the retaining walls, they are not for the benefit of the council and therefor are not the responsibility of the Council. However the walls are of no benefit to the adjacent private land and would not be required at all had the drain never been installed. The wall adjacent number 71 has failed and caused significant damage to the property including movement of the house. Council survey confirms their ownership of the walls and they had agreed to pay for the replacement of the wall and the damage caused by it before suddenly changing their mind again, claiming that the walls are purely for the benefit of the private land. This is clearly not the case.
- [2]In a letter addressed to the respondent and dated 10 February 2022, the applicant asserts the claim is made up or calculated as follows:
Underpinning concrete path | $2,915.00 |
Underpinning house | $7,562.50 |
Demolish older retaining wall | $1,495.00 |
Excavation for retaining wall | $2,530.00 |
New retaining wall | $9,801.00 |
| $24,293.50 |
- [3]For the reasons following, the decision of the Tribunal is:
- 1.The application by the applicant filed 20 March 2023 to amend the claim in the proceeding is refused.
- 2.The proceeding is dismissed.
Background
- [4]The applicant is the owner of 71 Galapagos Way, Pacific Pines (applicant’s land). The respondent is the owner of an adjoining reserve approximately 4 metres wide (reserve). A concrete pathway is constructive on the reserve below which there is an underground stormwater pipe.
- [5]A low timber retaining wall was constructed on the common boundary between the applicant’s land and the reserve. The retaining wall is that referred to in the application and is said to have “… failed and caused significant damage to [the applicant’s land] including movement of the house …”
- [6]The retaining wall has been demolished and replaced with a concrete wall and Colorbond fence.
- [7]The respondent denies it is liable to the applicant for the amounts claimed or any other amount.
Interlocutory application
- [8]The respondent, on 24 February 2023, made application to the Tribunal for an order that the proceeding be dismissed or struck out on the ground the Tribunal is without jurisdiction to hear and decide the proceeding. The short point is whether the claim by the applicant to is a claim to recover a debt or liquidated demand of money.
Order of 6 March 2023
- [9]On 6 March 2023 the Tribunal ordered:
- The applicant, by 4:00pm on 20 March 2023, file and serve by email any submissions on the jurisdiction of the Tribunal to hear and decide the proceeding, and any other material on which she relies to establish jurisdiction.
- The respondent, by 4:00pm on 27 March 2023, file and serve by email any submissions in reply to the applicant's submissions and material.
- The jurisdiction of the Tribunal to hear and decide the proceeding be decided on the papers after 27 March 2023.
- [10]The parties filed extensive material, including affidavits and submissions. Also, the applicant filed an application to amend the claim in the proceeding to $13,816.00, made up or calculated as follows:
Demolish old retaining wall | $ 1,485.00 |
Excavate for new retaining wall | $ 2,530.00 |
New retaining wall | $ 9,801.00 |
$13,816.00 |
- [11]The reduced claim, it is submitted, is “… a simple liquidated demand of money and falls within the jurisdiction of the Tribunal …”
Discussion
- [12]The Tribunal is given jurisdiction to hear and decide civil disputes by section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Minor civil disputes is defined in the dictionary in schedule 3 to the Act. Relevantly, the meaning includes a claim to recover a debt or liquidated demand of money of up to the prescribed amount.
- [13]The meaning of “liquidated demand of money” has been considered by the courts and tribunals on many occasions. In Hill v Berghofer[1] the then President of the Tribunal, Wilson J, observed:
Mr Berghofer’s claim was framed as a claim for a known, precise and ascertainable sum – $5,705.50 – so it is tempting to regard it as a claim to recover a ‘debt or liquidated demand’. Neither of those terms is defined in the QCAT Act. A ‘debt or liquidated demand’ is, as the Deputy President explained in Ziegeler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78, 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.[2]
(Citation omitted)
- [14]The respondent drew the Tribunal’s attention to the decision of the Appeal Tribunal in Daniel & Anor v Townsville City Council[3]. There, the applicants made application to the Tribunal below in respect of damage to their property consequent on the respondent redirecting stormwater run-off onto the property. The proceeding was dismissed for want of jurisdiction.
- [15]The Appeal Tribunal held the claim is not for a debt or liquidated demand and otherwise did not fall within the definition of minor civil dispute, and refused leave to appeal. At [6] and [7], citing Rothenberger Australia Pty Ltd v Poulsen[4] and Practice Direction 9 of 2010, the Appeal Tribunal held:
- [6]The claim is for damages arising from acts or omissions by the Council. This requires an assessment of compensation for loss occasioned by negligence or possibly nuisance. Ms Daniel and Mr Gledhill filed invoices in an endeavour to calculate their loss. Their claim is therefore for unliquidated damages:
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.
- [7]The Tribunal does not have the power to award damages in its minor civil disputes jurisdiction for unliquidated damages arising from negligence or nuisance.
- [16]Here, the applicant’s claim, as originally formulated and as proposed by amended, is a claim for damages arising from alleged acts or omissions of the respondent. The determination of an entitlement to the amounts claimed or any other amount could not be made without the Tribunal hearing evidence to establish a cause of action (for example, in negligence or nuisance). Then, the Tribunal would need to be satisfied on matters such as contributory negligence, if applicable, mitigation of any loss and damage and remoteness of damage.
- [17]It follows the Tribunal is without jurisdiction to hear and decide the proceeding. The nature of the claim made is not cured by the proposed amendments with the consequence the applicant’s application to amend the claim is dismissed.
Decision
- [18]The decision of the Tribunal is as follows:
- The application by the applicant filed 20 March 2023 to amend the claim in the proceeding is refused.
- The proceeding is dismissed.