Harris v Martinez[2023] QCATA 59

REASONS FOR DECISION

1. [1]
   On 6 December 2021, an adjudicator dismissed an application for a minor civil dispute brought by Mr Harris against Mr Martinez.
2. [2]
   Mr Harris has applied for leave to appeal that decision.  Leave to appeal is required pursuant to section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), as the application was for a minor civil dispute. 

The proceedings before the adjudicator

3. [3]
   On 8 September 2021, Mr Harris filed an application for a minor civil dispute.  He sought an amount of $12,500, being the amount he paid to Mr Martinez for the purchase of the vessel ‘James McCabe’, plus costs.
4. [4]
   Mr Harris set out the basis of his claim in the application as follows:

‘Note’ line three of his ready made receipt/document, he states (The Vessel is sold free of all encumbrances).  In fact Officers with the Maritime Services Queensland who how have the vessel told me they had been attempting to take the vessel for two and a half years.

5. [5]
   The adjudicator was provided with a receipt for the purchase of the vessel dated 7 April 2021.  The receipt provided:

Received from Capt C Ronnie the sum of $10,000 (Then Thousand Dollars) being full price for the Vessel James McCabe registered Number XA861Q.

The vessel is sold free of all encumbrances.

The purchaser has been notified and acknowledges the liability to remove the vessel from Qld Waters to enable survey inspection prior to being placed back in the water after satisfactory inspection.

The vessel is to be removed from Steiglitz Boat Yard mooring area prior to 16 April 2021 otherwise the purchaser will be liable for rent due from that date to Steiglitz boat yard.  Vessel includes all building materials on board.

The purchaser has been notified and acknowledges the above conditions and that the vessel requires repair or replacement to both engines and will need to be towed to a suitable boat lifting facility.

6. [6]
   Mr Harris claimed that he paid a further $2,500 for carpentry work completed by Mr Martinez on the vessel.  According to Mr Martinez, the $2,500 for materials and workmanship was an attempt by Mr Harris to reduce his stamp duty obligations on the transfer.
7. [7]
   Following purchase of the vessel, on 22 June 2021, Maritime Safety Queensland (‘MSQ’) issued to Mr Harris a declaration that the vessel was unseaworthy and must be removed from Queensland waters.  The vessel was said to be unseaworthy because (amongst other things) it had ‘no operable means of propulsion’.
8. [8]
   Subsequently, on 26 August 2021, Mr Harris entered into a deed of transfer of ownership with MSQ.  As set out in the recitals:

3. E.
   MSQ issued the Owner a Shipping Inspector Declaration … requiring the ship to be removed from Queensland waters by 23 July 2021.

3. F.
   The Owner did not comply with this requirement and does not have the means or capability to salvage the Ship from the Site.

3. G.
   MSQ proposes to salvage, store or dispose of the Ship and in doing so will incur costs and expenses (‘Costs’) that the Owner has the responsibility to pay (‘Debt’).

3. H.
   The owner agrees to transfer to the State all interest in and title to the Ship in satisfaction of the Debt.

3. I.
   MSQ will retain the proceeds of any sale of the Ship which shall be in full and final satisfaction of the Debt.

9. [9]
   The adjudicator’s reasons, as recorded in the transcript of the original hearing, relevantly state:

[Y]our claim today fails for these reasons.  There is no evidence that Mr Martinez – the vessel he sold you was encumbered.  If you are claiming he misrepresented the state of the vessel to you, which I think you’ve said you weren’t, but it is clear from the receipt that you signed and which you accept was made available at the date of the purchase, clearly, clearly mentions the fact that the vessel is – the purchaser has been notified and acknowledges the liability to remove the vessel from Queensland waters to enable survey inspection prior to being placed back in the water after satisfactory inspection.  There is another paragraph about the engine.

Sir, it should have been abundantly clear to you that the [vessel] was not seaworthy, and that the consequences of that – even if you weren’t aware of the consequences of that, it was up to you to inform yourself about the consequences.  Not up to Mr Martinez.  He’s simply a seller of a boat for $10,000 like a ship.  A veritable ship.  I would have been immediately concerned about what I was buying for $10,000.  You have taken on the responsibility.  Okay.  Mr Martinez has done nothing wrong, and, as I said, no encumbrance.  In fact, he’s probably not obliged – he’s certainly not obliged to meet any of the Australian consumer law warranties, because he’s not a trader.  This boat – this ship was not purchased in the course of trade of (sic) business.  It was a private transaction between your and Mr Martinez.

Grounds of appeal

10. [10]
    The grounds of appeal set out in the application for leave to appeal may be summarised as follows:

    3. (a)
       the adjudicator did not take evidence on oath; and

    3. (b)
       the adjudicator erred by not focussing on the contents of the documents drawn up by MSQ.
11. [11]
    Directions were made on 18 January 2022, 14 July 2022 and 30 September 2022 for the filing of an application to rely on fresh evidence should Mr Harris wish to do so.  While Mr Harris filed a statutory declaration and various other items, no application for fresh evidence was filed despite the Appeal Tribunal’s repeated directions. 
12. [12]
    The grounds of appeal are without substance.  In relation to the first ground, section 57(2)(a) of the QCAT Act provides that the Tribunal ‘may require a person appearing before the tribunal to give evidence on oath’.  Similarly, section 96(4)(b) provides that evidence at a hearing, ‘if the tribunal requires, must be given on oath or by affidavit’.  These powers are discretionary, and a review of the transcript does not indicate any request by Mr Harris for the adjudicator to take evidence on oath.
13. [13]
    In relation to the second ground of appeal, there is no evidence that MSQ possessed an encumbrance over the vessel as at the date of sale.  Even if the declaration by MSQ that the vessel must be removed from Queensland waters was an encumbrance, which I do not accept, the fact remains that it was not issued until after the date of sale.  More generally, I am unable to discern any basis for Mr Harris’ complaint as the receipt clearly disclosed a liability to remove the vessel from Queensland waters.
14. [14]
    In any event, the adjudicator did not have jurisdiction to consider the claim by Mr Harris as it did not fall within the definition of ‘minor civil dispute’.  That term is defined in schedule 3 of the QCAT Act to mean:

3. (a)
   a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or

3. (b)
   a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—

3. (i)
   for payment of money of a value not more than the prescribed amount; or

3. (ii)
   for relief from payment of money of a value not more than the prescribed amount; or

3. (iii)
   for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or

3. (iv)
   for return of goods of a value not more than the prescribed amount; or

3. (v)
   for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or

3. (c)
   a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or 

3. (d)
   a tenancy matter; or

3. (e)
   a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or

3. (f)
   a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.

15. [15]
    ‘Trader’ is in turn relevantly defined in schedule 3 of the QCAT Act as follows:

3. A
   trader—

3. (a)
   means a person who in trade or commerce—

3. (i)
   carries on a business of supplying goods or providing services; or

3. (ii)
   regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and

16. [16]
    As noted by the adjudicator, the sale of the vessel was a private sale.  Mr Martinez was not a trader, and accordingly the dispute does not fall within paragraph (b) of the definition of minor civil dispute.
17. [17]
    Further, the dispute is not a claim to recover a debt or liquidated demand within paragraph (a) of the definition of minor civil dispute.  In considering whether a claim is to recover a debt or liquidated demand of money, Justice Carmody said in Financial Advisers Australia v Mooney & Anor [2016] QCATA 181 at [12] that it was the nature of the claim that determines jurisdiction, and that merely claiming a specific amount is not conclusive.
18. [18]
    It is clear from the application that the claim by Mr Harris is based on an alleged breach of contract, namely that the vessel was not sold free from encumbrances.  Notwithstanding that Mr Harris has claimed a specific amount, the nature of his claim for breach of contract is unliquidated.  The contract contains no pre-estimate of damages, which would therefore need to be assessed.  As Justice Nettle stated in Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26 at [79] and [81]:

The ordinary meaning of ‘liquidated damages’ is a sum fixed by the parties to a contract as a genuine pre-estimate of damage in the event of a breach, whether as a predetermined lump sum, or by means of a specific calculation or scale of charges or other positive data … it is also clear that a claim for unliquidated damages is not converted into a claim for liquidated damages by reason of the plaintiff having incurred and being able to specify the costs for which the damages are claimed.

19. [19]
    Paragraphs (c) to (f) of the definition of minor civil dispute also have no application to the present case.

Disposition

20. [20]
    For the reasons set out above, I am not satisfied that Mr Harris has established that there is either a reasonable argument that the adjudicator’s decision was attended by error and that an appeal is necessary to correct a substantial injustice caused by that error, or that the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage (see Saxer v Hume [2022] QCATA 25 at [2]).
21. [21]
    In these circumstances, leave to appeal is refused.