C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye
[2022] QCATA 61
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- C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye[2022] QCATA 61
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C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye[2022] QCATA 61
C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye[2022] QCATA 61
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust v Sye & Anor [2022] QCATA 061 |
PARTIES: | C & K Home Investment Pty Ltd ATF C & K Discretional Family Trust (applicant) v derek malcolm sye and alisa mary sye atf the sye family trust (respondents) |
APPLICATION NO: | APL293-20 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 3 May 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – management agreement – where commission claimed – whether claim liquidated or unliquidated – where primary decision is that tribunal has no jurisdiction – application for leave to appeal – whether jurisdiction exists – where claim not liquidated – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143, Schedule Three Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Bonett v The Queen [2013] NSWCCA 234 Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 Devries v Australian National Railways Commission (1993) 177 CLR 472 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 Orr v Holmes (1948) 76 CLR 632 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91 Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 |
APPEARANCES & REPRESENTATION: | 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
Introduction
- [1]The primary tribunal dismissed these proceedings for want of jurisdiction. The original and present applicant (`C & K’) seeks leave to appeal[1] that decision.
- [2]On 23 August 2019 C & K filed Minor Civil Dispute (minor debt) application against the respondents (`the Syes’) claiming $2,977.56 and alleging obscurely that:
The Sye family owes us money for the commissions and management fees from the settlement date 5 July 2019.
For example, if a tenant pays rent for the period of 4/7/19-10/7/19, as our management rights business settlement [illegible] was 5/7/19, we are entitled to the commission management fees from 5/7/19-10/7/19 even though the tenant paid the rent on 4/7/19. I have attached all the supporting documents including our commissions and invoice [illegible] the figure was calculate. The seller has been [illegible] on the commission [illegible] for over 1.5 months. Should you have any questions please feel free to contact me. Also we don’t have their address after settlement. They became not contactable.
- [3]This Delphic pleading drew the following response from the Syes:
The dispute is in relation to the incorrect amount being claimed. The correct amount for commissions and management fees sub total $2,974.64 less admin fees and backyard maintenance income of $526.95 total of $2,447.69. Mid stream of sale a goodwill contract price variation adjustment was agreed in order to cover such overlooked incidentals, commissions and income that may arise. The am0unt was $5,000 plus legal costs of $550.
We consider that this amount of $2447.69 has been covered in the Deed of Variation.[2]
- [4]C & K’s minor debt application implied that the debt alleged was a liquidated amount. But the adjudicator characterised it as an unliquidated claim and dismissed the action for want of jurisdiction.[3]
- [5]
- [6]A claim is `liquidated’ when it seeks an amount that does not require any exercise of judicial fact-finding or discretion to crystallise it, or to arrive at a definite finding of quantum. If any assessment is needed, it must be by a process of simple mathematical calculation[6], without any input of judicial decision-making[7].
- [7]I respectfully agree with the adjudicator’s decision on the jurisdictional issue. By no stretch of logic could this claim be fairly described as liquidated or `easily quantifiable’.[8] It is not a minor civil debt claim within the meaning of the QCAT Act. The amount and calculation of the claim is in dispute.[9] There is a deed of variation to be interpreted.
- [8]The new evidence that C & K seeks to tender at this stage is voluminous and not immune from the challenge set out in the Response. Resolution of that challenge would require judicial intervention. Furthermore, that material is inadmissible, absent any satisfactory demonstration that it was not reasonably available at the time of the trial.[10]
- [9]The proper purpose of an application for leave to appeal is to see whether there is any reasonable prospect of demonstrating legal error or some `glaring improbability’[11] in reasoning or the conclusion from the facts. That has not been achieved in this case. Consequently leave to appeal must be refused.
- [10]However, this decision on a jurisdictional point does not extinguish the applicant’s claim, which may, if so desired, be pursued in another jurisdiction.[12]
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1] As required by s 143(3) of the QCAT Act.
[2] Deed bearing date 19 June 2019.
[3] Transcript of hearing 12 August 2020 (`T’) page 4 lines 29-30.
[4] Other clauses of the definition have no application to the present case.
[5] QCAT Act Schedule 3 Dictionary, definition of `minor civil dispute’ clause (a).
[6] Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142 per Knox CJ and Starke J; Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [11].
[7] Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 at [79]; Dalgety Futures Pty Ltd & Anor [1980] 2 NSWLR 646 at [12], quoting with approval Odgers Pleading and Practice 5th ed, p 41; Alexander v Ajax Insurance Co Ltd [1956] VLR 436.
[8] Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [87].
[9] Response filed 24 September 2019 Part D items 1-3.
[10] Bonett v The Queen [2013] NSWCCA 234; Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641.
[11] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudrom and McHugh JJ.
[12] Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 at [30]; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91 at 195.