Financial Advisers Australia v Mooney & Anor [2016] QCATA 181

CITATION: Financial Advisers Australia v Mooney & Anor [2016] QCATA 181 PARTIES: Financial Advisers Australia (Applicant) v Patrick John Mooney Kim Eleanor Mooney (Respondents) APPLICATION NUMBER: APL123-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 22 November 2016 DELIVERED AT: Brisbane ORDERS MADE: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: 1. Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicant’s claim was dismissed for want of jurisdiction – where the tribunal found the applicant was not a ‘trader’ – where the applicant seeks to claim an amount for services rendered – whether the claim is for a debt or liquidated demand – where the tribunal erred in relying on the characterisation of the applicant as a trader in finding it had no jurisdiction – whether the applicant suffered a substantial injustice as a result Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 11, 12, 13, Schedule 3 Lim v New College Queensland Pty Ltd & Ors [2013] QCAT 605 Solahart Mackay & Ors v Summers [2013] QCATA 113 -- 1 of 4 -- 2 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 APPEARANCES and REPRESENTATION: This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The applicant’s money claim was dismissed by the tribunal for want of jurisdiction. At issue is whether the claim is a genuine minor civil dispute or not. [2] As the proposed appeal involves the construction of the QCAT Act, leave to appeal will ordinarily be granted to allow the appeal tribunal to consider the merits if there was a reasonably arguable case of error and risk of economic injustice to the applicant. The context [3] In 2011, the respondents agreed to pay the appellant a one-off fee of $13,662 for all previous investment advice and management services provided as parts of a program. The fee was payable on settlement of the investment property the respondents purchased as part of the program. The condition on which liability to pay depended was not met because the respondents’ finance application was refused in 2013. [4] The applicant invoiced the respondents on 1 July 2015 for items which the respondent asserts are outside the lump sum fee agreement. QCAT’s minor civil dispute jurisdiction [5] The applicant’s claim was characterised in the initiating application as for “the provision of services which were invoiced but not paid for…”. [6] The tribunal at first instance held that it lacked jurisdiction to hear and decide the dispute because the applicant was not a ‘trader’ within the ambit of s 12(4)b) QCAT Act and, therefore, was not a relevant person for the purpose of making an application for the tribunal to deal with the claim as a minor civil dispute. [7] Section 12 QCAT Act lists the kinds of applications within the tribunal’s minor civil dispute jurisdiction. Subsection (4) identifies the relevant persons entitled to invoke that jurisdiction by applying to the tribunal to deal with a dispute. Under subparagraph (b) of s 12(4), that person for a contract between a consumer and trader is the consumer, not the trader. [8] The only final decisions the tribunal may make to resolve a minor civil dispute for a debt or liquidated demand money claim are mentioned in s 13(2)(a) QCAT Act. -- 2 of 4 -- 3 [9] The respondents contend that the claim is outside the tribunal’s limited statutory jurisdiction to resolve minor civil disputes because (a) it is really a quantum meruit and not either a minor debt or liquidated demand; and (b) the applicant is neither a ‘trader’ within s 11(1)(b) nor ‘relevant person’ for the purposes of s 12(1) QCAT Act. [10] As the applicant is neither a consumer nor a trader, the tribunal reasoned that it is not a relevant person for making a minor civil dispute claim to the tribunal either. [11] However, the applicant also claims to be a creditor and, therefore, that the matter is within the scope of the tribunal’s minor civil dispute jurisdiction if it relates to a debt or liquidated demand less than $25,000 under ss 11(1)(a), 12(2)(a) and Sch 3 QCAT Act. [12] A debt or liquidated demand within the QCAT Act has been described as a “sum of money that can be calculated by reference to a formula, schedule or some other yardstick”.1 The antithesis of a debt or liquidated demand is an amount ascertainable only by discretionary assessment2 such as unliquidated damages. It is the nature of the claim, rather than its prospects of success, that determines jurisdiction. The claim must in law be a debt or liquidated amount – merely claiming a specific amount is not conclusive. [13] At [18]-[20] of their written submissions the respondents contend that: 18. The implementation authority… provides only for the payment of a management and service fee of $13,662.00 for the “implementation of the programme”. The terms of the contract only state that a management and service fee is payable upon settlement of an investment property arranged as part of the Excelsior Program. This is the only cont(r)act between the Appellant and Respondents. 19. The services provided by the Appellant were provided in anticipation of the Excelsior Program succeeding, that is, the Appellant being able to arrange an investment property for the Respondents. As the Appellant was unable to fully implement the Excelsior Program the management and service fee never became due and payable under the terms of the contract. What the Appellant seeks in its Application is recompense for work and labour done in furtherance of the Excelsior Program succeeding and reimbursement for the services occurring through payment of the management and service fee. This is identical to the circumstances in (Solahart Mackay & Ors v Summers)3 where Mr Sumner undertook work in expectation of an agreement being reached where he would be recompensed for the work he was undertaking. 20. In the absence of a contract which identifies that the work itemised in the tax invoice was to be carried out for the Respondents for the fees 1 Lim v New College Queensland Pty Ltd & Ors [2013] QCAT 605. 2 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, 142. 3 [2013] QCATA 113. -- 3 of 4 -- 4 charged the Appellant’s claim is properly as a quantum meruit claim and not as a debt or liquidated demand. [14] In response the applicant quotes a plethora of purportedly alike cases4 where the tribunal heard matters about the provision of financial services in the minor civil dispute jurisdiction and relies on the terms of a signed client agreement dated 5 July 2011 to justify item 1 of the invoice for the balance of a plan fee of $304.61 ($1,540 – $1,235.39). [15] If the applicant had alleged in the initiating claim that it was made under a contract (written or oral) where the amount was calculated according to a formula, scale or other mechanism as distinct from for recompense for services rendered based on notions of fairness or implied equitable obligation, the tribunal would have to hear and determine it on its merits. [16] However, even on the most generous interpretation, the application does not unequivocally make such a claim. [17] Accordingly, although there is a reasonably arguable case that the tribunal erred in relying on the consumer/trader ground in s 12(4)(b) QCAT Act to dismiss the claim, no substantial injustice was caused because the applicant’s claim does not clearly enliven the minor civil dispute jurisdiction over minor debts and liquidated demands under s 12(4)(a) QCAT Act. [18] Leave to appeal is refused. The applicant is at liberty to reinstitute tribunal proceedings for item 1 provided the application makes it plain that it is a contract-based debt or liquidated money claim, but otherwise will have to sue in the courts for the balance. 4 Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1; Kouba Blake Accounting Pty Ltd v Tanflex Pty Ltd & Anor [2010] QCAT 81; Lake Street Investments Pty Ltd v Monet Finance Corporation Pty Ltd [2014] QCAT 220; SRJ Audit Pty Ltd v Safe and Sound Building Society [2015] QCAT 44; Jenkins v Jennings [2010] QCAT 370; Goldiwood Pty Ltd t/as Margaret Franklin & Associates v ADL (Aust) Pty Ltd t/as Adviser Logic [2014] QCAT 238; The Sabin Family Trust t/as Word Dynamics v Active Accounting Software t/as Books-R-Us [2015] QCAT 249; Doval Constructions QLD Pty Ltd v Digital Genius Pty Ltd [2013] QCAT 145. -- 4 of 4 --