Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89

CITATION: Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89 PARTIES: Alliance Security Australia Pty Ltd (Appellant/Applicant) v House Secure Pty Ltd (Respondent) APPLICATION NUMBER: APL546-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Forbes, Member DELIVERED ON: 16 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order of 26 November 2013 is set aside. 4. These proceedings are transferred to the Magistrates Court of Queensland at Southport. CATCHWORDS: APPEALS – LEAVE TO APPEAL - MINOR CIVIL CLAIM – MINOR DEBT – whether subject claim liquidated – whether evidence of debt or contract – whether claim within jurisdiction of Tribunal – whether Tribunal should raise jurisdictional issue ex mero motu – whether error of law in proceeding to hear and decide claim – whether appeal should be allowed – whether matter should be transferred to competent court Competition and Consumer Act 2010 (Cth) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 52, schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), schedule -- 1 of 4 -- 2 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 McGarry v Coates [2013] QCATA 32 PRD Nationwide Pty Ltd v de Abaitua (No 2) [2010] QCATA 33 Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395 APPEARANCES and REPRESENTATION (if any): 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] Sitting Around (“Sitting”), a commercial furniture business, employed Onwatch Pty Ltd to provide security at Sitting’s Bundall premises. Onwatch subcontracted the task of monitoring those premises to the Appellant, Alliance Security Australia Pty Ltd (“Alliance”). [2] In or about April 2012, Sitting chose the Respondent, House Secure Pty Ltd (“Secure”) to replace Alliance. According to Secure, Alliance refused to disclose a code, or password, needed to effect that change. According to Alliance (Secure dissenting) no proper application for the code was made. [3] Secure overcame the impasse by having new equipment installed, at a cost of $660. In this minor civil dispute, Secure claims that amount as a debt payable by Alliance. On 26 November 2013 the Tribunal (McMahon and Vickers JJP) upheld Secure’s claim, and Alliance now seeks leave to appeal. [4] Setting aside contentions that do not now matter, the issues, as pleaded,1 can be briefly and simply stated: Secure says that Alliance refused to supply the requisite code, which compelled it to install new equipment costing $660. Alliance says that it is not liable to pay that amount to Secure, and further, that the claim, for what it may be worth, should be in the Magistrates Court, not in the Tribunal – a contention repeated in their application for leave.2 [5] In legal terms, Alliance says that the claim is not one for a liquidated amount, and that the Tribunal, therefore, has no jurisdiction to hear and decide it as a minor civil dispute. 1 Application in form of a Minor Civil Dispute – Minor Debt, filed 1 August 2012; Response filed 12 September 2013. 2 Application for leave to appeal filed 12 December 2013 Part D, (additional notes, paragraph (a). -- 2 of 4 -- 3 [6] A liquidated claim is a pre-determined lump sum such as a debt, or an amount based on a specified scale of charges.3 Generally a claim for damages is not a liquidated claim,4 even if the claimant can specify the expenses for which damages are sought.5 So far as is now relevant, a minor civil dispute involves a debt or liquidated demand, and certain claims arising out of a contract.6 The definition is narrower still when (as here) proceedings are instituted for a minor debt.7 [7] At the hearing, unfortunately, the inquiry was irretrievably derailed. There was vague, acrimonious, and irrelevant argument about earlier court proceedings in New South Wales,8 and disagreement about whether the “locked” password was properly requested or not, but there was simply no evidence of an agreement between the parties to warrant a liquidated claim for $660. At page 17 of a 20-page transcript,9 the Tribunal asked Mr Todan (for Alliance) whether Alliance had any evidence of a contract with Sitting. The relevance of this question is not readily apparent. The real question (apart from jurisdiction) was whether Alliance agreed to pay Secure the cost of the new equipment at the office of Sitting, but it remained virgin territory. [8] At the hearing, neither the Tribunal nor the parties made any reference to the jurisdictional issue raised in Alliance’s response. The fact that unrepresented parties let it lie does not matter. A court or tribunal is entitled, indeed bound, to examine - on its own initiative, if necessary - a jurisdictional issue. Absent jurisdiction, there is no point in wasting resources by making orders that are void, and which the subject party may simply ignore.10 [9] In awarding Secure the amount claimed, the Tribunal reasoned: While there have been no written agreements presented to us, which also makes decision making very difficult, we have come to the realisation and agreement ... that there was probably a verbal agreement between Mr Cowan and Mr Morris. In addition to all of these facts we have little other evidence presented especially by the respondent11 and, in particular no contracts between anyone.12 However, given all these difficulties, we have come to the conclusion that Alliance Security interfered with Peter Morris’ property in pursuit of restraint of trade and this necessitated ... Mr Cowan ... 3 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 at [79]. 4 Alexander v Ajax Insurance Co Ltd [1956] VLR 436. 5 Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 at [81]. 6 QCAT Act schedule 3 definition of minor civil dispute, paragraphs (a) and (b). 7 See the definition of “minor debt claim” in the schedule to the Queensland Civil and Administrative Tribunal Rules 2009. 8 McMahon JP: “Anyway, that’s not really relevant to this particular matter, is it?” Cowan: “That’s exactly right”: Transcript of hearing 26 November 2013 (“Transcript”) page 18 lines 43-46. 9 Transcript page 17 lines 12-14. 10 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6 at [35]; McGarry v Coates [2013] QCATA 32 at [6]. 11 The onus of proof was upon the applicant Secure. 12 Transcript page 19 lines 41-42. -- 3 of 4 -- 4 spending money to replace the equipment. We’re therefore ordering that [Alliance] pay the applicant the sum of $660 plus filing fee... 13 [10] The finding that there were no contracts between anyone is difficult to reconcile with the preceding observation, namely, that there was probably a verbal agreement between Mr Cowan and Mr Morris. Furthermore, Morris was a representative of Sitting,14 and that entity is not party to these proceedings. The reference to interfer[ing] in ... restraint of trade may conceivably be a cryptic finding in tort, or under the Competition and Consumer Act 2010 (Cth). But neither was pleaded, and neither is within this jurisdiction. [11] In the absence of any material evidencing a debt owed by Alliance to Secure, these proceedings are not a liquidated claim. Accordingly the Tribunal has no jurisdiction to entertain them as a minor civil dispute.15 In view of that error of law, leave to appeal must be granted, the appeal allowed, and the order of 26 November 2013 set aside. [12] It is not the Tribunal’s place to offer gratuitous legal advice, but it may be possible for Alliance to reframe its case on some other basis, as one for unliquidated damages. Therefore I shall transfer this matter to the Magistrates Court at Southport,16 where Alliance may pursue it or discontinue it, as Alliance sees fit. ORDERS 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The order of 26 November 2013 is set aside. 4. These proceedings are transferred to the Magistrates Court of Queensland at Southport. 13 Transcript page 19 per McMahon JP, Vickery JP agreeing. 14 Original application, 1 August 2013 Part B; Transcript page 4 lines 37-40. 15 For similar errors, see McGarry v Coates [2013] QCATA 32; PRD Nationwide Pty Ltd v de Abaitua (No 2) [2010] QCATA 33. 16 QCAT Act s 52. I note that Secure is based at Robina. -- 4 of 4 --