Zeng v Queensland Building and Construction Commission
[2023] QCATA 10
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- Unreported Judgment
- Zeng v Queensland Building and Construction Commission[2023] QCATA 10
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Zeng v Queensland Building and Construction Commission[2023] QCATA 10
Zeng v Queensland Building and Construction Commission[2023] QCATA 10
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Zeng v Queensland Building and Construction Commission [2023] QCATA 10 |
PARTIES: | liuou zeng (appellant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | APL293-21 |
ORIGINATING APPLICATION NO/S: | MCDO52/21 (Holland Park) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 9 February 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – FROM INTERLOCUTORY DECISIONS – GENERALLY – where the application was dismissed for lack of jurisdiction on a summary basis – where, ignoring the poor merits of the claim, it was to recover a debt or liquidated demand of money and within the tribunal’s jurisdiction – whether the poor merits of the claim should be ignored when deciding such questions Acts Interpretation Act 1954 (Qld), s 14A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 12, s 146, schedule 3 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Financial Advisers Australia v Mooney & Anor [2016] QCATA 181 |
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
- [1]This is an appeal brought by Liuou Zeng against a decision by a tribunal Adjudicator that her minor civil dispute claim should be dismissed for lack of jurisdiction. This decision was made by a tribunal Adjudicator on the papers on a summary basis, that is, without hearing the claim on the merits.
- [2]Ms Zeng’s minor civil dispute application to the tribunal was for the Queensland Building and Construction Commission to refund her insurance premium for cover under the statutory insurance scheme for the construction of a new residential dwelling.[1] Her grounds for seeking the refund were that the insurance cover was invalid.
- [3]By a response filed in the tribunal on 26 August 2021, the QBCC stated that the application was misconceived because the commission had been wrongly named as the respondent (because it was not a trader) and the relief which was sought by Ms Zeng could not be granted by the tribunal in the proceeding. The QBCC asked that the application be dismissed.
- [4]This was referred to an Adjudicator who on 30 August 2021 made this order:
Both parties are to file and serve any further submissions as to the jurisdiction of the Tribunal to hear and determine the application as a minor civil dispute within 14 days.
- [5]Nothing further seems to have been filed in the tribunal in compliance with the above order.
- [6]On 13 September 2021 the Adjudicator made this order:
The application is dismissed for lack of jurisdiction.
- [7]Ms Zeng asked for reasons for the decision made and these were given by the Adjudicator on 11 October 2021.
- [8]In the reasons, the Adjudicator described the tribunal’s jurisdiction in minor civil disputes of this type, that is where a claim was either (a) to recover a debt or liquidated demand of money or (b) arising out of a contract between a consumer and a trader. The Adjudicator said that the claim was not of type (a) and that (b) did not apply. This meant that the tribunal had no jurisdiction to hear the application.
- [9]In this appeal it is not suggested that the claim might be type (b). Clearly the QBCC is not a trader. This was because the QBCC was not a person in trade or commerce carrying on a business of supplying goods or providing services.[2]
- [10]Whether the claim is type (a) is more problematical and needs to be considered.
Was the claim to recover a debt or liquidated demand of money?
- [11]In this appeal the main consideration is whether the Adjudicator was correct to say that the claim was not to recover a debt or liquidated demand of money.
- [12]Here the Adjudicator was referring to the definition of ‘minor civil dispute’. The relevant part of schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) defines one type of minor civil dispute as follows:
minor civil dispute—
1 Minor civil dispute means—
- (a)a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
(other types of minor civil dispute not reproduced)
- [13]In this appeal, neither Ms Zeng nor the QBCC address the issue whether the claim was to recover a debt or liquidated demand of money.
- [14]As Justice Carmody said in Financial Advisers Australia v Mooney & Anor [2016] QCATA 181, it is the nature of the claim rather than its prospects of success that determines jurisdiction, but the claim must in law be a debt or liquidated amount – merely claiming a specific amount is not conclusive.[3] So this means that the test should be applied at the time the claim is presented or as amended.
- [15]Whether or not Ms Zeng’s claim is within the definition can be seen from her application, and it is also helpful to look at the documents attached to the application. The application stated:
Part C – Details of what you seek from the tribunal. I want the tribunal to make the following order/s:
Refund of insurance QBCC premium of $16,364.05 (inc filing fee $358)
Insurance premium was invalid as the registered builder was deceased prior to approval being obtained.
QBCC as they did not provide the product (insurance cover). Can not keep the fee of insurance. The policy was invalid.
A refund is required as QBCC can not provide insurance
Part D – Details of what you seek from the tribunal. The reason I am seeking orders from the tribunal
The registered open licence builder Domenico Berlese became deceased on 12 May 2018.
An approval was granted but this was invalid due to the fact that the builder was deceased.
It is a requirement of the Act that a building licence is required to accompany the purchase of QBCC insurance.
Refund of fees is required as no service or product was provided. The product was invalid (insurance policy).
- [16]There is no doubt that Ms Zeng is saying in the application that (had it been expressed in legal terms) the insurance cover was void from the outset and therefore the whole of the premium paid should be returned. As such, contrary to the view taken by the Adjudicator, I take the view that this is a claim to recover a debt or liquidated demand of money. The amount claimed is an ascertained and known amount, and if the claim succeeds in the way it is presented, the whole of that money would be repayable.
- [17]In the circumstances I give leave to appeal (necessary in appeals of this type) and allow the appeal.
Disposal of the appeal
- [18]I need to decide how to dispose of the appeal. It is an appeal under section 146 of the QCAT Act (deciding appeal on question of law only) which means that I could affirm the decision to dismiss the claim for lack of jurisdiction on other grounds.
- [19]This is tempting because the merits of the claim seem very poor. For one thing, the statutory insurance scheme itself provides for refund of premiums, none of which fit the circumstances pertaining here. It seems very unlikely that there is any room for a refund to be due under the common law. Also, on paper, Ms Zeng’s claim is obscure. It is quite unclear how she could be entitled to a refund.
- [20]In addition to this, on the documents attached to the application, it cannot be said that the insurance cover was void because there is a notice of cover which appears to have been properly issued on 2 January 2018 and which therefore took effect from that date. Work on site commenced, and events which caused difficulties were much later in the year.
- [21]So if there was anything which meant that in some way the insurance cover was cancelled, the cover must have been in place for a period of time. This means that at its highest, only a proportion of the premium would be returnable. The tribunal would have to assess this, so the amount would not be liquidated, and the claim would not be in the jurisdiction of the tribunal as a claim to recover a debt or liquidated demand of money for that reason.
- [22]So delving into the merits of the claim demonstrates that the claim is likely to be untenable, and outside the jurisdiction of the tribunal anyway. Is it right however, to delve into the merits in this way when deciding the question of jurisdiction in a claim to recover a debt or liquidated demand of money?
Can the merits of a claim be taken into account when deciding jurisdiction in such a claim?
- [23]Justice Carmody in Financial Advisers Australia was clear that it is not legitimate to consider the merits when deciding whether the claim is one to recover a debt or liquidated demand of money.
- [24]At first sight however, section 12 of the QCAT Act seems to say that the tribunal only has jurisdiction to hear a claim to recover a debt or liquidated demand of money if the debt or money is actually due to the applicant.
- [25]Section 12 says:
12 When jurisdiction for minor civil dispute exercised
- (1)The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
- (2)A relevant person may, as provided for in subsection (3), agree to limit the person’s claim to the prescribed amount in order to bring the claim within the tribunal’s jurisdiction for a minor civil dispute.
- (3)A relevant person limits the person’s claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
- (4)In this section—
relevant person means—
- (a)for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or
- (b)subject to paragraphs (c) to (f), for a claim arising out of a contract between a consumer and a trader—the consumer; or
- (c)for a claim arising out of a contract between 2 or more traders—any of the traders; or
- (d)for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage; or
- (e)for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
- (f)for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—a party to the dispute; or
- (g)for a matter under the Building Act 1975, chapter 8, part 2A—a person who, under the Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.
- [26]The way it would be put is that, by section 12(4)(a), it is only if the debt or money is actually due to the applicant that the applicant is a relevant person. And unless the applicant is a relevant person the tribunal has no jurisdiction to hear and decide the minor civil dispute.[4]
- [27]If this argument is correct then the merits of a claim to recover a debt or liquidated demand of money would be an important consideration as to whether the tribunal had jurisdiction to hear and decide the claim.
- [28]It would also mean that after a full hearing, if the tribunal decided that the applicant was not a person to whom the debt is owed or money is payable, the result would be that the tribunal would not have had jurisdiction to make that decision after all. In turn it would mean that an unsuccessful minor debt claim should always be struck out for lack of jurisdiction, rather than fail in the tribunal on its merits, because the applicant would not be a relevant person within section 12(4)(a). Clearly it is impractical to construe the provision in this way and it produces an absurd result.
- [29]This is not how the tribunal has dealt with these cases in the past.
- [30]Largely this is because it has been assumed that section 12 does not delineate the jurisdiction of the tribunal but merely describes who may be an applicant. Has this been the correct assumption?
- [31]Words similar to ‘the tribunal may exercise its jurisdiction’ are used elsewhere in the QCAT Act, and in other legislation similar to the QCAT Act. The words usually define what can and cannot be done when exercising jurisdiction and who can and cannot exercise such jurisdiction, and so the words usually do delineate the jurisdiction of the tribunal.[5]
- [32]It is notable that for most of the other types of claim, the wording of section 12 is more easily applied. So sections 12(4)(b) and 12(4)(c) make it clear that in a consumer claim a consumer can be a relevant person when bringing a claim against a trader, and that a trader can be a relevant person when bringing a claim against another trader. In other words, a consumer cannot bring a claim against another consumer and a trader cannot bring a claim against a consumer. These provisions are concerned with who may be a party to such claims. Then for tenancy, neighbourhood, and Building Act (pool fence) disputes the relevant person is the person who has a right to apply under the relevant Act.
- [33]The wording of section 12(1) read together with these more easily applied parts of section 12(4) do demonstrate that the purpose of the section is not to delineate jurisdiction but simply to provide who can be an applicant in the claims specified. The words in section 12(4)(a) itself probably also tend to show this, by referring to ‘a person to whom’ rather than referring to ‘where there is a debt’.
- [34]It is unlikely that the legislature intended to delineate jurisdiction in the case of claims to recover a debt or liquidated demand of money and not in other types of claims. The principle that express mention of one matter indicates other related matters are excluded should be exercised with caution if it would bring about a result which the legislature is unlikely to have intended.[6]
- [35]
- [36]For my purposes in this appeal the above analysis shows that the tribunal and the Appeal Tribunal is not able, in a claim to recover a debt or liquidated demand of money (and therefore a minor civil dispute within schedule 3 of the QCAT Act), to say that such a claim is outside the jurisdiction of the tribunal on the grounds that it is obviously untenable – and therefore because the applicant is not a relevant person within section 12(4)(a) - that is, they are not a person to whom the debt is owed or money is payable.
- [37]It can be noted that although Justice Carmody in Financial Advisers Australia did consider that for the tribunal to have jurisdiction in a claim to recover a debt or liquidated demand of money the applicant must be within section 12(4)(a),[9] the question of jurisdiction was solely considered on the application as presented by the applicant without considering any merits.
- [38]There are other ways in which an obviously unmeritorious claim for a debt or liquidated demand of money can be dealt with in the tribunal at an early stage. In particular it could be struck out under section 47 of the QCAT Act as being frivolous, vexatious or misconceived, lacking in substance or an abuse of process. In the minor civil dispute jurisdiction however, often the simplest way to deal with such an unmeritorious claim is to list it for hearing.
- [39]This is not the way the Adjudicator dealt with this application however. It was dismissed for lack of jurisdiction.
Conclusion
- [40]I have decided that this was a claim to recover a debt or liquidated demand of money and that for the purposes of the tribunal’s jurisdiction to hear such a claim it would be wrong to dismiss it for lack of jurisdiction because it appears to be untenable on the merits.
- [41]In the circumstances, I set aside the decision to dismiss and return the application to the tribunal for reconsideration.
Footnotes
[1]Queensland Home Warranty Scheme.
[2]That is, the relevant part of the definition of ‘trader’ in Schedule 3 to the QCAT Act.
[3][12].
[4]Such jurisdiction being given by section 11 of the QCAT Act.
[5]There are several examples in the QCAT Act itself: when the tribunal can exercise its jurisdiction in an enabling Act (section 15), in a review (section 18) and in an appeal (section 27), and what constitution of members are required to exercise the jurisdiction of the tribunal at various levels. Similar use of the expression is made in the Uniform Civil Procedure Rules 1999 (Qld) and the Supreme Court of Queensland Act 1991 (Qld).
[6]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ, [19].
[7]Section 3(d) of the QCAT Act.
[8]Section 3(b).
[9][17].