Annmarcris Pty Ltd v Jaydon Pty Ltd [2015] QCAT 138

CITATION: Annmarcris Pty Ltd v Jaydon Pty Ltd [2015] QCAT 138 PARTIES: Annmarcris Pty Ltd atf Annmarcris Trust (Applicant) v Jaydon Pty Ltd (Respondent) APPLICATION NUMBER: MCDO2387-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 19 March 2015 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 19 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is transferred to the Magistrates Court at Brisbane for hearing. 2. The applicant’s claim shall be deemed to have commenced on the date of filing of the initiating application in the Tribunal. CATCHWORDS: COMMERCIAL TENANCY DISPUTE – make good provisions pursuant to commercial lease – claim for damages – cost of make good claimed as a debt – minor civil dispute debt jurisdiction Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3 Hill v Berghofer [2011] QCATA 034 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] The application seeks end of commercial tenancy maintenance and repairs primarily to cranes which the applicant Annmarcris says formed part of fixtures and fittings at the premises 42 Campbell Avenue, Wacol. The claim is made pursuant to make good provisions of the commercial lease entered into between Annmarcris and Jaydon. [2] Jaydon had occupied the premises for some three years prior to December 2013. [3] Annmarcris’ claim is essentially encapsulated in its invoice number 0088 dated 26 September 2014 attached to its application. That invoice refers to maintenance and repairs to cranes at 42 Campbell Avenue, Wacol to bring them back to the condition as required under the relevant lease ($11,740.30) and maintenance and service to air conditioners ($570.00) a total of $13,541.33 inclusive of GST. [4] Annmarcris has issued its make good claim as an application for minor civil dispute – minor debt. [5] The issue that has now arisen is whether or not this is a claim which can be determined by the Tribunal in its minor civil dispute jurisdiction. [6] Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) lists the types of applications that the Tribunal may entertain in its minor civil dispute jurisdiction. The section includes a debt or liquidated demand to $25,000 as well as claims arising out of a contract between a consumer and a trader (which this is not) and a claim arising out of a contract between two or more traders (which this is not). Other types of applications that may be entertained pursuant to s 12 are not relevant here. [7] Schedule 3 of the QCAT Act describes a minor civil debt, amongst other things, as ‘a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount ($25,000)’. [8] 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 or sum payable can be readily determined. This claim cannot be calculated in that manner. It is clear that the maintenance and repairs are in the nature of damage and were never a ‘debt’ as defined. [9] The cranes and air conditioners were fixtures and fittings at the premises 42 Campbell Avenue, Wacol which were subject to a make good at end of lease provision. Clearly that does not constitute a debt but rather a claim the quantum of which would have to be assessed by a Court taking into account factors such as condition and age of machinery at commencement of lease, repairs already effected during course of the lease, fair wear and tear, use to which the machinery was put, condition at lease end. Those considerations are not exhaustive. -- 2 of 3 -- 3 [10] Perhaps the position can be better summed up by reference to the Tribunal’s decision in Hill v Berghofer1 where the honourable Justice Alan Wilson at [7] of that decision refers to the fact that the words ‘debt or liquidated demand’ are not defined in the QCAT Act. He goes on to state: A debt or liquidated demand is, as the Deputy President explained in Ziegeler t/as Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78, one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the court or tribunal, it is not liquidated.2 [11] That is clearly the case here. [12] The Tribunal in its minor civil dispute jurisdiction has not and never did have jurisdiction to determine a claim for damages arising out of alleged failure to abide by make good provisions in a commercial lease. That being the case this application ought properly be transferred to the Magistrates Court Brisbane for further prosecution by the applicant as it sees fit. Order 1. The application is transferred to the Magistrates Court Brisbane for hearing. 2. The claim is deemed to have commenced on the date of filing of the initiating application in this Tribunal. 1 [2011] QCATA 34. 2 Ibid [7]. -- 3 of 3 --