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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McCracken v Nespoli  QCATA 107
ORIGINATING APPLICATION NO/S:
21 July 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the appellant had brought minor debt proceedings claiming the balance owed for sale of a massage table to the respondent – where Justices of the Peace took evidence at hearing and allowed the respondent to recover on a purported counter application – where there is no counter application permitted in minor debt proceedings – where leave to appeal granted – whether the appellant was entitled to claim costs of appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(2), s 147(2)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84
Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge  QCATA 94
Pickering v McArthur  QCA 294
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
- The applicant Ms McCracken commenced minor debt proceedings in the tribunal against Ms Nespoli claiming $220 as the balance of monies owing her for the sale of a massage table. Ms McCracken also claimed for her filing fee, service fee and interest.
- Ms McCracken and Ms Nespoli had been friends. Ms Nespoli agreed to work for Ms McCracken for a share of the charges for massages performed by Ms Nespoli for Ms McCracken’s massage parlour clients.
- Ms McCracken also agreed to sell a spare massage table to Ms Nespoli. They agreed that Ms Nespoli could pay it off over time.
- According to Ms McCracken the sale price was $400. According to Ms Nespoli it was $200.
- The claim came on for hearing before Justices of the Peace. They heard from both parties. The order they made was that the applicant, Ms McCracken, pay the respondent, Ms Nespoli, $330.
- Ms McCracken seeks leave to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.
- The grounds of appeal are essentially two-fold:
- (a)Ground 1: The Justices of the Peace erred in setting off an amount claimed by Ms Nespoli for wages owed her by Ms McCracken where the only issue for determination in the proceeding was whether Ms Nespoli owed money to Ms McCracken for the massage table.
- (b)Ground 2: The Justices of the Peace erred in finding that Ms McCracken admitted at hearing that she had only paid Ms Nespoli $70 for massage services.
- The Justices of the Peace erred in setting off an amount claimed by Ms Nespoli for wages owed her by Ms McCracken where the only issue for determination in the proceeding was whether Ms Nespoli owed money to Ms McCracken for the massage table.
- At the hearing there was significant time spent on an issue raised by Ms Nespoli concerning her claim that she had not been paid by Ms McCracken for her massage work performed.
- Ms McCracken commenced minor debt proceedings against Ms Nespoli.
- There can be no counter application in minor debt applications. That is clearly precluded by the QCAT Rules.
- Yet the Justices of the Peace apparently thought Ms Nespoli had filed (or her claim warranted) a counter application. They referred to a counter application by her when giving reasons for decision:
From the outset, it is clear that the claim and counterclaim by the parties are diametrically opposed.
- They thereby fell into error of law in proceeding to determine what monies were owed to Ms Nespoli on a counter application and ordering Ms McCracken, the applicant, to pay money to Ms Nespoli, the respondent.
- The decision below cannot stand.
- Ththhe Justices of the Peace erred in finding that Ms McCracken admitted at hearing that she had only paid Ms Nespoli $70 for massage services.
- The Justices of the Peace spent significant time trying to obtain the necessary evidence at hearing to enable them to determine the disputes between the parties.
- From the transcript of the proceedings it is clear that Ms McCracken does not speak English as her first language. A perusal of the transcript shows that language may have been a factor in the Justices of the Peace concluding that when Ms McCracken said Ms Nespoli earned money they took that statement made by her on a number of occasions to mean she had not paid the money.
- Having the benefit of the written transcript of proceedings, it is clear that Ms Nespoli’s assertion that she had only been paid $70 in total for work done by her for Ms McCracken and Ms McCracken owed her unpaid wages was never put to Ms McCracken by the Justices of the Peace.
- In giving their reasons for decision the Justices of the Peace said:
It is the applicant’s evidence that she has paid cash to the respondent in the amount of $70, leaving $730 still owed to the respondent.
- But Ms McCracken said on a number of occasions that Ms Nespoli earned money and Ms McCracken deducted $60 on some occasions in reduction of the debt due for the massage table. It is not clear why the Justices of the Peace took that to mean Ms McCracken did not actually pay Ms Nespoli the money earned. It was not warranted from the language or context in which Ms McCracken said it on more than one occasion at the hearing. At minimum, it should have been clarified if not clear to the Justices of the Peace, what she meant by that statement by putting the interpretation of what they thought Ms McCracken was saying, to her. It was not.
- I note in any case it was Ms Nespoli who mentioned the figure of $70, not Ms McCracken. Ms McCracken mentioned leaving $40 for Ms Nespoli on one occasion, but she made no mention of paying $70, and certainly no admission that she had not paid Ms Nespoli all that was owed her save for three retentions of $60 each for payment for the massage table.
- This was an error of fact on the part of the Justices of the Peace.
- Ms McCracken has suffered a substantial injustice with the decision below. There was a clear error made which must be corrected. Leave to appeal is granted.
- Given the appeal includes an appeal on a question of fact, I proceed to determine the appeal by way of rehearing.
- In deciding the appeal, I note again that English is not Ms McCracken’s primary language. That aside, the evidence presented by her before the Justices of the Peace was compelling. As acknowledged by the Justices of the Peace, her written business records, which the Justices of the Peace described as extensive, gives her evidence significant weight and bolsters her credibility as a witness.
- It seems clear the Justices of the Peace regarded Ms McCracken as a truthful witness and I accept and adopt their findings about that.
- Looking to what was said in the transcript, I determine when Ms McCracken referred to Ms Nespoli earning wages what she meant by that was that she paid Ms Nespoli those wages. Her credibility is not in issue. Her statement at hearing, repeated on more than one occasion, detailing the wages earned by Ms Nespoli and the three amounts of $60 held back from her earnings in part payment for the table, cannot reasonably be understood otherwise than Ms Nespoli was paid the difference.
- Significantly, and rather conclusively one would think, Ms Nespoli failed to mention in her response filed in answer to Ms McCracken’s claim about money outstanding for the table, anything about outstanding earnings. The only matters canvassed by her in her response was to dispute the agreed price of the table and to detail the circumstances of a physical altercation which occurred between the parties when Ms McCracken came to see her at her home looking for remaining payment for the table.
- I adopt the findings of the Justices of the Peace that the price of the table was $400. That seems likely on the evidence and is supported by the finding as to Ms McCracken’s veracity. I accept Ms McCracken’s evidence that she withheld from Ms Nespoli’s wages $180 in part payment for the table. Therefore I find there remains a balance owing by Ms Nespoli to Ms McCracken of $220 for the table.
- The Justices of the Peace refused Ms McCracken’s claim for costs on the basis she was unsuccessful at hearing. She should have succeeded. She should recover her filing fee for the application for minor civil dispute – minor debt of $26.25. She was also entitled to recover her service (bailiff) fee which seems reasonable at $50.40. She is entitled to interest to date of judgment on the judgment sum of $220. That has increased from the date of filing the initial application. I calculate the interest now due stands at $26.40.
- Unfortunately for Ms McCracken, her victory will not be entirely satisfactory to her. She asks for her costs of appeal. The Appeal Tribunal cannot assist her with that.
- By s 102(2) of the QCAT Act, the only costs that can be awarded against a party to a proceeding for a minor civil dispute are the costs stated in the Rules that may be awarded.
- By r 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) the Tribunal may award costs against a party to a proceeding for a minor debt claim limited to the filing fee, a fee charged for electronic filing of a document, a bailiff’s service fee and the cost of a business or company name search.
- Interest is permitted as part of the substantive claim for recovery of the debt or liquidated demand.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
 Pickering v McArthur  QCA 294.
 Rule 48(3).
 Transcript 1-38 line 9.
 Transcript 1-39 line 30.
 Definition of ‘minor civil dispute’ in Schedule 3 of the QCAT Act which includes ‘a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount’.
 QCAT Act, s 147(2).
 Maszlik v Lorraine Palmer t/as Bundaberg Park Lodge  QCATA 94.
- Published Case Name:
McCracken v Nespoli
- Shortened Case Name:
McCracken v Nespoli
 QCATA 107
21 Jul 2020