Daniel v Townsville City Council [2017] QCAT 423

CITATION: Daniel & Anor v Townsville City Council [2017] QCAT 423 PARTIES: Heidrun Gisela Daniel and Richard Geoffrey Gledhill (Applicants) v Townsville City Council (Respondent) APPLICATION NUMBER: MCDO152-17 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 24 August 2017 HEARD AT: Townsville DECISION OF: Susan Warrington, Adjudicator DELIVERED ON: 24 August 2017 DELIVERED AT: Townsville ORDERS MADE: Application is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants filed application for minor civil dispute – minor debt – where dispute does not fall within definition of “minor civil dispute” in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether tribunal has jurisdiction Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 8 February 2017 the applicants filed a minor debt application seeking payment from the respondent in the amount of $24,636.00 plus costs. -- 1 of 4 -- 2 [2] The applicant claims that the respondent installed a concrete flume along the side of 13 Hurst Street, Picnic Bay which has redirected storm water runoff onto the applicant’s property at 16 Birt Street, Picnic Bay thereby causing erosion to the applicant’s property. The applicant is seeking compensation for the cost incurred by them in remedying the situation in the amount of $24,636.00. [3] On 19 May 2017 the respondent filed a response to the minor debt application seeking to have the application dismissed on the grounds that the flume installed by them within the road reserve footpath of Hurst Street, Picnic Bay did not alter stormwater flows. [4] On 19 July 2017 the Tribunal issued directions to both the applicant and respondent requiring them to make written submissions in relation to a preliminary issue, namely whether or not the Tribunal has jurisdiction to hear and determine the application. [5] The applicant filed a letter dated 1 August 2017, received by the Townsville QCAT registry office on 3 August 2017. [6] The respondent did not file any further written submissions. [7] I am satisfied that I can determine the issue of jurisdiction based upon the information provided in the application filed 8 February 2017, the response filed 19 May 2017 and the correspondence filed by the applicant on 3 August 2017. [8] In the letter dated 1 August 2017 the applicant submits that the Tribunal does have jurisdiction to hear the claim however the applicant does not make any reference to the relevant law, instead referring to a history of correspondence between themselves and the respondent. [9] Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (to be referred to as the QCAT Act) lists the types of applications that the Tribunal may consider in its minor civil dispute jurisdiction. [10] Schedule 3 of the QCAT Act describes a minor civil dispute which includes a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is: a) for payment of money of a value not more than the prescribed amount; or b) for relief from payment of money of a value not more than the prescribed amount; or c) for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or -- 2 of 4 -- 3 d) for return of goods of a value not more than the prescribed amount; or e) for a combination of any 2 or more claims mentioned above where the total value of the combined claim is not more than the prescribed amount. [11] The prescribed amount is $25,000.00. [12] There are other types of applications that also fall within the Tribunals minor civil dispute jurisdiction however they are not relevant to this application. [13] A debt or a liquidated demand has been described as a sum of money that can be calculated by reference to a formula, schedule or some other yardstick by which the debt of sum payable can be readily calculated. [14] The applicants are claiming damages that include the reimbursement of costs associated with carrying out work to redirect storm water runoff which they allege was caused by the respondent. The claim by the applicant appears to require assessment and determination and I am not satisfied that the claim is a debt or liquidated demand of money. [15] The second consideration is whether the dispute arises out of a contract between a consumer and trader. This requires a determination on whether or not the respondent falls within the definition of a trader. [16] Schedule 3 of the QCAT Act describes a trader as meaning: 1 A trader - (a) means a person who in trade or commerce— (i) carries on a business of supplying goods or providing services; or (ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and (b) includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for— (i) assigning or subletting the dwelling to someone else; or (ii) a trade or business carried on by the tenant. 2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services— (a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or (b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a -- 3 of 4 -- 4 discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services provided are in all respects in accordance with the instructions. [17] The Townsville City Council is a local government which is an elected body that is responsible for the good rule and local government of the City of Townsville. The respondent, Townsville City Council does not fall within the definition of a trader and therefore, the Tribunal does not have jurisdiction to determine the claim. [18] The application is dismissed. -- 4 of 4 --