Coplick's Food Service Pty Ltd v Cunningham [2012] QCAT 719

CITATION: Coplick’s Food Service Pty Ltd v Cunningham [2012] QCAT 719 PARTIES: Coplick‟s Food Service Pty Ltd (Applicant) v Cassandra Mary Cunningham t/as Bella Deliish (Respondent) APPLICATION NUMBER: MCDO50535-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Beenleigh DECISION OF: Trevor Davern, Adjudicator DELIVERED ON: 7 November 2012 DELIVERED AT: Beenleigh ORDERS MADE: The application for default order is refused. CATCHWORDS: APPLICATION for decision by default on a „Minor Debt Claim‟ REQUIREMENT for confirmed compliance with „substituted service‟ order, in an affidavit of service COSTS and expenses of a „Commercial Agent‟ – exclusion of (Commercial Agent) costs and expenses in any order relating to a „Minor Debt Claim‟ Property Agents and Motor Dealers Act 2000, s 347 Queensland Civil and Administrative Tribunal Act 2009, ss 12(4)(a), 14, 50, 102(2) Queensland Civil and Administrative Tribunal Rules 2009, ss 27, 40, 42, 60, 84 -- 1 of 4 -- 2 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] On 9 May 2012 Safeguard Collection Services (as an “approved entity”) electronically filed an application for a minor debt claim. This claim identified Coplick‟s Food Service Pty Ltd (ABN 47100322861) as the applicant, and Cassandra Mary Cunningham trading as Bella Deliish as the respondent. [2] The statement of particulars of claim reads as follows The Applicant … claims $1,517.42 being the balance of monies, including costs and interest associated with recovery of these moneys, as per the Applicants Terms and Conditions, accepted by the Respondent on the 9th September 2010. Original invoices $1,441.46 less $500 paid by the Respondent on the 28th November 2011 plus 28% commission $443.96 incl gst plus instruction fee $22.00 plus document preparation $110.00 incl gst. Due and owing by the Respondent for goods sold and delivered, by the Applicants at the Respondents request. From this district, from the 26th December 2010 to 12th June 2011, the particulars of which have been delivered. [3] Safeguard Collection Services made an application on 14 June 2012 for substituted service upon the Respondent by ordinary pre-paid post to PO Box 981, Bribie Island. After considering the application, the Tribunal determined on 20 June 2012, that Service of the Claim/Application is to be effected by substituted service, by forwarding by ordinary pre-paid post a copy of the Application (with any supporting documentation) together with a copy of this order authorising service, to the Respondent as follows: (a) 13 Cumming Street Bongaree QLD 4507 And (b) PO Box 981 Bribie Island. Service of the Application shall be deemed to have occurred FIFTEEN (15) days after date of posting. [4] Safeguard Collection Services lodged the subject request for decision by default by post on 17 October 2012, with an affidavit of service and an affidavit of debt. Affidavit of Service [5] The affidavit indicates that service has not been carried out as prescribed in the tribunal‟s substituted service order. It only mentions posting the material to PO Box 981 Bribie Island, and not the second required address. Another failure is that the actual date of posting has not been mentioned. By the terms of the substituted service order, effective service shall be deemed to have occurred fifteen days after the date of posting to both addresses. Affidavit of Debt -- 2 of 4 -- 3 [6] There are inconsistencies between the content of the affidavit of debt and the original claim document. In the claim document interest has been claimed at 20% and a sum of $13.75 is also included for a Citec transaction fee. In the affidavit interest has been claimed at 10% in accordance with the QCAT Practice Direction and no claim has been made for a Citec transaction fee. A common element in each document is the claim amount of $1,517.42. [7] The claim document that was constructed by Safeguard Collection Services, purports that the detailed recovery costs that they have added are in accordance with the terms and conditions of the contract between the applicant and the respondent. In short, the claim sum is made up of a debt of $941.46 and recovery fees charged by Safeguard Collection Services in the amount of $575.96. “Debt” or “liquidated demand of money” [8] A “debt” or “liquidated demand of money” is something that is either known or declared or can be determined from the contractual terms or arrangements between the parties. [9] If a contract contains a general provision that a party may recoup recovery costs on an outstanding debt, then a costs allowance as determined to be reasonable by the decision maker may form part of the liquidated debt. As a comparison, if a solicitor filed a claim for $941.46 in the Magistrates Court, their recoverable scale cost would be $260.00. That scale cost covers Instructions to sue, preparing the claim and statement of claim and service. Recovery of costs of a commercial agent [10] Section 347 of Property Agents and Motor Dealers Act 2000 provides that: (1) A person must not recover or attempt to recover from a debtor the costs or expenses of a commercial agent for – (a) collecting or attempting to collect a debt by the debtor; or (b) repossession or attempting to repossess goods or chattels from the debtor. Maximum penalty – 200 penalty units (2) Subsection (1)(b) does not apply to prevent a person who appoints a commercial agent to repossess goods or chattels from a debtor from recovering the commercial agent‟s costs and expenses if the person has a right under an agreement with the debtor or otherwise to recover the costs or expenses. (3) Costs and expenses recovered in contravention of subsection (1) may be recovered by the debtor as a debt. [11] In this case there has been no direct input by the identified applicant. Safeguard Collection Services remains responsible for the claim document that was filed electronically by them on 9 May 2012. Section 347(1)(a) of -- 3 of 4 -- 4 the Property Agents and Motor Dealers Act 2000 expressly prohibits a person from attempting to recover from a debtor, a commercial agent‟s fees and expenses for collecting or attempting to collect a debt by the debtor. [12] No evidence has been provided to justify the inclusion of the Commercial Agent‟s fees in the claim. Costs that may be awarded for a “minor debt claim” [13] Before a default order can be made, the decision maker must be satisfied that it is for a claim that is a debt or liquidated demand of money that might be due and payable, with the possible addition of interest and some limited costs. [14] The costs that may be awarded for a „minor debt claim‟ are limited to: a) filing fees; b) service fee and travelling allowance at the rate of prescribed bailiff fees; c) electronic filing fee; and d) business name and company search fee. Findings [15] Proper service of the claim has not been affective. When a “substituted service” order has been made, then proper service is only carried out when it is confirmed by affidavit that the full extent of the “substituted service” order has been adhered to. [16] The affidavit of debt does not sufficiently substantiate that the whole of the amount claimed constitutes a recoverable “debt” or “liquidated demand of money”. [17] Additional scrutiny should be applied when there is an attempt by a „Commercial Agent‟ to include in a claim and/or a default order application, the Commercial Agent‟s costs or expenses that are otherwise prohibited from inclusion. An affidavit or other sufficient form of evidence should be provided by the actual „Applicant‟ to substantiate upon what basis those costs and expenses have been included with the claim, before that part of any claim can be considered further. Decision [18] The Application for default order is refused. -- 4 of 4 --