Fin One Pty Ltd v Kucharski [2018] QDC 35

DISTRICT COURT OF QUEENSLAND CITATION: Fin One Pty Ltd v Kucharski [2018] QDC 35 PARTIES: Fin One Pty Ltd (A.C.N. 139 719 903) (appellant) v Adam Michael Kucharski (respondent) FILE NO/S: 3986 of 2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 16 March 2018 DELIVERED AT: Brisbane HEARING DATE: 9 March 2018 JUDGE: Everson DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL – JURISDICTION OF MAGISTRATES COURTS – whether a proceeding to recover personal property was a “personal action” – whether Magistrates Courts have jurisdiction in any event. District Court of Queensland Act 1967 (Qld), ss 68, 69 Magistrates Courts Act 1921 (Qld) ss 4, 45 Personal Property Securities Act 2009 (Cth) s 123 Uniform Civil Procedure Rules 1999 (Qld) r 26 Vale v TMH Haulage (1993) 12 ACSR 124 Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455 Walsh v Toyota Finance Australia Ltd [2016] QDC 92 COUNSEL: D Skennar QC for the appellant SOLICITORS: Morgan Conley Solicitors for the appellant -- 1 of 7 -- 2 Introduction [1] This is an appeal pursuant to section 45 of the Magistrates Courts Act 1921 (Qld) (“MCA”) from the decision of Acting Magistrate Carmody dated 21 September 2017 dismissing the originating application of the appellant. [2] Her Honour ultimately determined that the Magistrates Court did not have jurisdiction to entertain the relief sought in the originating application. This relief, although somewhat inelegantly drafted, was effectively the delivery up of possession of a 2008 Mitsubishi Triton motor vehicle (“the vehicle”) and ancillary orders. The affidavit filed in support of the originating application disclosed that the vehicle was the subject of a consumer loan contract entered into between the appellant and the respondent which required the respondent to make payments totalling $25,261.40 together with interest and establishment fees. The appellant alleged that the respondent had defaulted in making payments pursuant to the consumer loan contract and wished to exercise rights to repossess the vehicle pursuant to section 123 of the Personal Property Securities Act 2009 (Cth). [3] The respondent failed to appear at the hearing of the originating application in the Magistrates Court and failed to appear at the hearing of the appeal before me. It was submitted to Acting Magistrate Carmody that there was effectively a preliminary legal question of jurisdiction which required determination and the legal representative of the appellant invited her to determine this on the basis of written submissions which had been provided to her.1 In a carefully considered written judgment Her Honour noted the divergence in approach taken in recent decisions of 1 MC T 1-2 – 1-3 . -- 2 of 7 -- 3 her colleagues and that of Smith DCJA in Walsh v Toyota Finance Australia Ltd2 before determining that the decision in Walsh should not be followed and that she lacked jurisdiction to entertain the originating application. [4] The appellant originally appealed on a number of grounds, however allegations concerning a denial of natural justice were abandoned at the hearing of this appeal and it was conceded that legislative provisions relevant to the repossession of the vehicle do not of themselves assist in establishing the jurisdiction of the Magistrates Court to entertain the originating application. It was conceded that the only gateway to jurisdiction lies in section 4 of the MCA.3 Does the relief claimed by the appellant come within the ambit of section 4 of the MCA? [5] Section 4 of the MCA is relevantly in the following terms: - “4. Jurisdiction of Magistrates Courts Subject to this Act - (a) every personal action in which the amount claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set off or otherwise; … may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions.” [6] The jurisdiction of the Magistrates Courts is much more restrictive than that of the District Court, which pursuant to section 68 of the District Court of Queensland Act 1967 (Qld) (“DCQA”) also has jurisdiction to hear and determine “all personal actions” within the applicable monetary limit, which is $750,000.4 The jurisdiction is much more extensive than that conferred by section 4 of the MCA and makes express reference to “any equitable claim”.5 Section 69 of the DCQA makes it clear 2 [2016] QDC 92. 3 T 1-6 – 1-8. 4 Section 68 (2). 5 Section 69 (1)(a)(i). -- 3 of 7 -- 4 that the District Court has all of the “powers and authorities of the Supreme Court” in hearing and determining matters within its jurisdiction including the power to grant equitable relief.6 There is no similar conferral of power on the Magistrates Courts. [7] In order to enliven the jurisdiction conferred by section 4(a) of the MCA it is necessary that the originating application come within the concept of a “personal action” in which the “amount claimed” is within the prescribed limit, namely $150,000.7 Despite the originating application not specifying a claim for a monetary amount it is submitted that this requirement is nonetheless complied with. In circumstances where the term is not defined in the MCA, reference is made to the definition of the term “amount” in the Macquarie Dictionary as including, inter alia “quantity or extent”.8 In this regard it is worth noting that there is no requirement pursuant to rule 26 of the Uniform Civil Procedure Rules 1999 (Qld) that the application itself show that the court has jurisdiction to decide the application, it is sufficient if the material filed with it discloses this.9 The supporting affidavit referred to above clearly shows that the relief sought is within the monetary jurisdiction of the Magistrates Courts so this particular requirement is complied with. [8] More contentious is whether the originating application comes within the definition of a “personal action” and if so what remedies are available. The meaning of this term was considered by Priestley JA in Vale v TMH Haulage10 in the context of a similar provision conferring jurisdiction on the District Court of New South Wales where he said: - “…in my opinion the way the term “personal action at law” was understood in 1973 in New South Wales was substantially that 6 Section 69 (1). 7 MCA section 2. 8 Macquarie Concise Dictionary 4th edition 2008. 9 R26 (8). 10 (1993) 12 ACSR 124 at 129. -- 4 of 7 -- 5 described in The Oxford Companion to Law (ed Professor DM Walker, 1980) as follows: Personal action. At common law in England, personal actions were distinguished from real actions (qv) and mixed actions (qv). They were claims against persons arising out of contracts or out of torts, the former comprising the actions of account, assumpsit, covenant, debt, and certain others, the latter comprising attaint, case, deceit, champerty, conspiracy, detinue, replevin, trespass, trover, and certain others. All these were abolished in the nineteenth century together with their individual original writs and distinct forms of procedure. The term is now frequently given to an action in personam, where the judgment of the court is a personal one, normally for payment of money, as contrasted with an action in rem, where the plaintiff seeks to make good a claim to or against certain property in respect of which, or in respect of damage done by which, he alleges that he has an actionable demand…" [9] It is uncontentious as the learned acting magistrate correctly found below that the appellant’s cause of action is akin to a claim in detinue.11 It is submitted by the appellant that once the court has jurisdiction in detinue the appellant is entitled to all remedies which follow from this cause of action including, on the facts before me, the right to repossess the vehicle.12 I do not accept this submission. Discretionary considerations apply to certain remedies which require an equitable jurisdiction to entertain them. As was stated in Salmond On The Law of Torts: - “The form of the judgment in detinue gave the defendant the choice whether he would deliver up the chattels or pay their assessed value…. The power of the court to order the specific restitution of chattels is discretionary and not a matter of right on the part of the plaintiff. Such an order, therefore, may be either refused altogether, or made only on such terms as to the court seems necessary to do complete justice between the parties.” 13 [10] The nature of remedies based on detinue was recently considered by the Court of Appeal in Wade Sawmill Pty Ltd v Colenden Pty Ltd14 where Keane JA relevantly observed: - 11 RJ [37]. 12 T 1-12, 1-13. 13 16th edition, Sweet & Maxwell 1973 at 115. 14 [2007] QCA 455 at [18]. -- 5 of 7 -- 6 “The plaintiff contends that the success of its action in detinue means that it was entitled to choose the form of relief appropriate to vindicate its right of action. It relies upon the statement of Diplock LJ in General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd: ‘….the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel. At common law it resulted in a judgment for delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention. This, in effect, gave the defendant an option whether to return the chattel or to pay its value, and if the plaintiff wished to insist on specific restitution of the chattel he had to have recourse to Chancery… In the result an action in detinue today may result in a judgment in one of three different forms: (1) for the value of the chattel as assessed and damages for its detention; or (2) for return of the chattel or recovery of its value as assessed and damages for its detention; or (3) for return of the chattel and damages for its detention.’” [11] His Honour subsequently considered various statutory provisions then conferring jurisdiction upon the Supreme Court of Queensland where the recovery of specific goods or the specific delivery of chattels was contemplated before stating that: - “The exercise of discretionary power conferred upon a judge by these statutory provisions and their analogues is…informed by considerations akin to the equitable principles which enable an order to be moulded to achieve a fair and just result in the circumstances of a particular case.”15 [12] Discordantly in Walsh, Smith DCJA applied a West Australian decision concerning the jurisdiction of the District Court of Western Australia to grant injunctive relief (an equitable remedy) in the context of a personal action16 before concluding: “In my view there was jurisdiction here for the Magistrates Court to make the orders it did as the recovery of possession of the property was within its general jurisdictional limit”.17 [13] With the greatest respect to His Honour, the jurisdiction to make orders for the recovery of possession of property does not depend upon whether the cause of action 15 At [23]. 16 Frigger v Nigam [2005] WADC 127. 17 [2016] QDC 92 at [25]. -- 6 of 7 -- 7 comes within the concept of a “personal action”. Rather it depends upon whether the court has jurisdiction to grant equitable relief. Unlike the District Court the Magistrates Courts do not have any equitable jurisdiction. As the learned acting magistrate below correctly stated, the appellant could bring a proceeding in the Magistrates Court based in detinue but only for monetary relief within the monetary jurisdiction of the Court.18 There was no jurisdiction to entertain a proceeding which sought the recovery of the vehicle. Conclusion [14] As the originating application confined the relief sought to the recovery of possession of the vehicle, the learned acting magistrate was entirely correct in finding that the Magistrates Court had no jurisdiction to entertain the originating application. [15] The appeal is dismissed. 18 RJ [73]. -- 7 of 7 --