Grommen v Hawes[2018] QCATA 49

REASONS FOR DECISION

What is this appeal about?

1. [1]
   Martinus Grommen and Shelly Hawes entered into a ‘Deed of Company and Trust Dissolution and Sale’^[1] to dissolve their business. Things did not go to plan and they each filed an ‘Application for minor civil dispute – minor debt’ in the Tribunal’s minor civil disputes jurisdiction.
2. [2]
   On 20 June 2017, the Tribunal dismissed Mr Grommen’s application and also ordered that he pay the sum of $4,928.05 for unpaid commissions into the account operated by their business, Gromshel Pty Ltd.
3. [3]
   Mr Grommen wants to appeal both the decision of the Tribunal to dismiss his application and its decision requiring him to pay unpaid commissions.
4. [4]
   Because the appeals are from a minor civil dispute, leave is required.^[2]
5. [5]
   In determining whether to grant leave, the Tribunal will consider established principles including:

1. whether there is a reasonably arguable case of error in the primary decision;^[3]
2. whether there is a reasonable prospect that the appellant will obtain substantive relief;^[4]
3. whether leave is needed to correct a substantial injustice caused by some error;^[5] and
4. whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[6]

Did the Tribunal have jurisdiction to decide Mr Grommen’s claim?

6. [6]
   Mr Grommen’s grounds of appeal did not address the threshold issue of the Tribunal’s jurisdiction over his claim. This is important because the Tribunal dismissed his application for want of jurisdiction on the basis that it was not a claim to recover a ‘debt or liquidated demand’.^[7]
7. [7]
   The Tribunal’s decision about want of jurisdiction is correct. Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the Tribunal’s jurisdiction over minor civil disputes. A ‘minor civil dispute’ relevantly includes a claim to recover a debt or liquidated demand.^[8] 
8. [8]
   Mr Grommen claimed that the amount payable to Ms Hawes under the Deed depended on the number of rental properties he acquired. He alleged she breached the Deed by taking over some of these properties. His claim is for contractual damages arising from an alleged breach of the Deed. This requires an assessment of compensation for loss occasioned by breach and is not readily quantifiable from the Deed itself.^[9]
9. [9]
   This is evident from Mr Grommen filing an accountant’s report^[10] in an endeavour to calculate his loss: unliquidated damages is where a claim is for a sum that cannot be determined without consideration by the Tribunal of the applicant’s evidence to support the claim.^[11]
10. [10]
    Mr Grommen’s claim also does not arise out of a contract between two or more ‘traders’^[12] because he and Ms Hawes were engaged in a professional discipline of providing real estate services.^[13] They engaged in an intellectual activity for reward involving training, accreditation and adherence to professional standards.^[14]
11. [11]
    Mr Grommen’s claim was not for a debt or liquidated demand and did not otherwise fall within the definition of ‘minor civil dispute’.  The Tribunal therefore correctly dismissed his application for want of jurisdiction.

Did the Tribunal have jurisdiction to set-off Mr Grommen’s claim against Ms Hawes’ claim?

12. [12]
    Mr Grommen submitted that the Tribunal did not take into account the amounts payable by Ms Hawes to him. However, having found that the Tribunal did not have jurisdiction over his claim, the Tribunal did not have jurisdiction to set-off his unliquidated claim against Ms Grommen’s minor debt claim.
13. [13]
    To make a set-off, the Tribunal would have been required to make findings for which it did not have jurisdiction – an entitlement by Mr Grommen up to the amount awarded to Ms Hawes of $4,928.00. Because the Tribunal did not have jurisdiction in its minor civil disputes jurisdiction to determine Mr Grommen’s claim, it also could not determine it as a set-off.

Did the Tribunal err in finding it had no jurisdiction over Mr Grommen’s claim?  

14. [14]
    Mr Grommen did not file a response to Ms Hawes’ minor debt claim as required by the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).^[15] He did not seek to transfer these matters to a more appropriate forum.
15. [15]
    Because of this and the Tribunal not having jurisdiction to determine Mr Grommen’s claim either as a separate minor civil dispute application or as a set-off to Ms Hawes’ minor debt claim, the Tribunal  did not err in finding it had no jurisdiction over his claim. 

Did the Tribunal correctly interpret the Deed?

16. [16]
    Mr Grommen submitted that the Tribunal erred in failing to find that Ms Hawes’ behaviour amounted to a repudiation of the Deed and failing to place proper weight on the Deed, erred in preferring Ms Hawes’ evidence over Mr Grommen’s evidence and that its findings were inconsistent with the evidence.
17. [17]
    Because the Tribunal did not have jurisdiction to determine Mr Grommen’s claim either as a minor debt claim or by way of set-off to Ms Hawes’ claim, the only relevance of Ms Hawes’ alleged behaviour was whether it repudiated the Deed sufficient to operate as a complete defence to her minor debt claim.
18. [18]
    The transcript of the hearing shows that the Tribunal was reluctant to make any findings about whether Ms Hawes’ behaviour was sufficient to constitute a breach of the Deed.^[16] However, that is because the Tribunal was unable to find any provision of the Deed – express or implied – restraining the alleged behaviour.^[17] 
19. [19]
    Mr Grommen claimed that contrary to the provisions of the Deed, Ms Hawes approached or procured authorities from clients to manage their rental properties. However, the Deed had no express provision preventing this. Nor did Mr Hawes provide any evidence of why it was necessary (as opposed to reasonable) to imply a term to this effect:

Terms can be implied by law (as a legal incident to a particular class of contract, regardless of the intentions of the parties) or by necessity to give business efficacy to a particular contract. Those implied by law are deemed necessary by implication; otherwise the whole of the transaction would be futile.^[18] (My underlining)

20. [20]
    The provision sought to be implied is effectively a restraint of trade. Restraint of trade provisions are prima facie unenforceable at common law.^[19] To be enforceable, they must at least be clear and definite.^[20]
21. [21]
    It was not an error by the Tribunal to not imply a restraint of trade provision.
22. [22]
    Without a restraint of trade provision, Ms Hawes’ alleged behaviour could not have amounted to a fundamental breach sufficient to warrant rescission of the entire Deed.
23. [23]
    Having found no restraint of trade as a matter of law,^[21] it was not necessary for the Tribunal to make any findings of fact about Ms Hawes’ alleged behaviour.
24. [24]
    Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
25. [25]
    It was therefore open to the Tribunal to find that the alleged behaviour did not amount to a fundamental breach of the Deed sufficient to constitute a complete defence to Ms Hawes’ claim, and I find no reason to come to a different view.

Should the Appeal Tribunal grant leave to appeal?

26. [26]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.^[22] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.^[23]
27. [27]
    There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.