Dixonbuild Pty Ltd v Live & Local Pty Ltd [2013] QCAT 673

CITATION: Dixonbuild Pty Ltd v Live & Local Pty Ltd [2013] QCAT 673 PARTIES: Dixonbuild Pty Ltd (Applicant) v Live & Local Pty Ltd (Respondent) APPLICATION NUMBER: MCDO1762-13 MATTER TYPE: Other minor civil dispute matter HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 29 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for default decision is refused. 2. The application is accepted as a trader claim and is to be set down for hearing promptly. CATCHWORDS: Debt for the purpose of a default decision – characteristics of a debt – Tribunal’s approach to characterising a sum of money as a debt – application as a consumer claim not a debt claim. 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 (QCAT Act). REASONS FOR DECISION [1] By application for minor civil dispute – minor debt filed 30 August 2013 the applicant Dixonbuild Pty Ltd (Dixonbuild) seeks a refund of $990.00 paid to the respondent Live & Local Pty Ltd (Live & Local) for the provision of an exhibitor stand at an exhibition event to be arranged by the respondent Live & Local. Dixonbuild asserts that due to a lack of interest the -- 1 of 3 -- 2 exhibition was subsequently cancelled but that the respondent has refused to refund, despite request, the $990.00 paid. Background and evidence [2] In April 2013 Dixonbuild paid in advance for an exhibitor stand at the Logan Live & Local expo scheduled for 19 through 22 June 2013. The expo did not take place due to apparent lack of support from Logan City Council, Logan Chamber of Commerce and local media. Subsequently Live & Local has failed to refund the $990.00 paid. Dixonbuild has claimed for a debt owing and seeks a default decision. Conclusions [3] Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) lists the types of applications that the Tribunal may entertain in its minor civil dispute jurisdiction. This section includes a debt or liquidated demand to $25,000.00 as well as claims arising out of a contract between a consumer and a trader and a claim arising out of a contract between 2 or more traders. Other types of applications that may be entertained pursuant to section 12 are not relevant here. [4] 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 ($25,000.00)”. [5] A debt or 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 calculated. Whilst here it could be argued that the sum of money being paid on account of the provision of an exhibitor stand is a specific sum of money it was never paid in the first instance as a sum repayable; rather it was paid for the provision of a service, a space at an expo, which never eventuated/was never performed. [6] The fact that the service was never performed does not turn the sum paid into a debt owing as, for instance, pursuant to a loan agreement; rather it is asserted as the right to a refund for non performance of a service. [7] Whilst the application has been filed as an application for a minor debt the Tribunal has the discretion to accept at this point the application as a trader claim rather than a minor civil debt. The Tribunal considers the applicants Dixonbuild claim to be a trader claim in terms of the QCAT Act. That being so this application ought properly proceed as an application for minor civil dispute – trader claim. Being under the threshold that necessitates mediation prior to hearing this claim can now be set down directly for hearing promptly. -- 2 of 3 -- 3 Orders [8] The application for default decision is refused. [9] The application is accepted as a trader claim and is to be set down for hearing promptly. -- 3 of 3 --