Black Hawk Pastoral Co Pty Ltd v Freckelton and Anor [2012] QCAT 702

CITATION: Black Hawk Pastoral Co Pty Ltd v Freckelton and Anor [2012] QCAT 702 PARTIES: Black Hawk Pastoral Co Pty Ltd (Applicant) v Darian Freckelton Robyn Ann Holzheimer (Respondents) APPLICATION NUMBER: MCDO3691-11 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: John Bertelsen, Adjudicator DELIVERED ON: 31 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed for want of jurisdiction. CATCHWORDS: Minor civil dispute – claim for interest, rates and insurances – accrual of liability under instalment contract – whether QCAT has jurisdiction – applicability of other legislation 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] The application filed 14 November 2011 claims $24,528.00 as a debt being “interest on money borrowed and the contract component is still outstanding as well as rates and insurance”. The response filed 14 December 2011 is unhelpful simply asserting “the application is groundless.” [2] On 6 February 2012 the applicant in view of the response filed a letter (“the letter”) annexing particulars of its claim. Unsuccessful mediation took place on 29 February 2012. -- 1 of 4 -- 2 [3] The application was set down for hearing on 16 April 2012 on which date the Tribunal ordered “the parties shall provide submissions to the Tribunal on the question of jurisdiction by 14 May 2012. The issue of jurisdiction shall thereafter be determined on the papers.” On 8 May 2012 the applicant provided its submissions. No submissions were received from the respondent. The applicant's letter and submissions serve to at least clarify the applicant's position. [4] Firstly the applicant's letter spoke of the respondents approaching the applicant “about obtaining a property their relatives had been living in under a rent/purchase agreement with us. Their relatives were in arrears with their repayments by $45,000.00. We advised the respondents we would require $105,000.00 for the property under a rent/purchase agreement with the $45,000.00 arrears paid up front. The remaining $60,000.00 was to be paid at $732.95 per month allowing for GST the amount being $772.75 per month. The respondents signed an agreement agreeing to these terms on 8 August 2008. The respondents then borrowed from us the amount of $3,465.50 to be paid to us at 14.35% over time.” [5] The agreement of 8 August 2008 recites the real property description of the land, the amount of credit at $105,000.00, monthly repayments due over 30 years, the payment due date each month and default interest rate. Attached correspondence for the period 9 October 2008 to 6 September 2011 refers variously to reminders to pay “land payment” and rates and insurance due. Also attached was an account summary reciting loan interest, monthly account fees, payments, default interest and rates and insurance charges incurred. [6] Secondly, the applicant's submissions of 8 May 2012 attached a further letter dated 3 May 2012. That further letter spoke of the $3,465.50 loan as well as a further additional loan of $6,000.00 “made by the applicant to the respondents aunty on behalf of the respondent.” It then went on to talk about other monies owing by the respondents stating that such “matters clearly have nothing to do with the contract… the matters under dispute are rates and insurance and a small amount of interest on the overdue monies. We point out the contract has been cancelled and due to non payment of the first months payment the contract has never come into force.” [7] This further letter goes on to say “as the contract is now cancelled and not in force anymore, interest agreed by the parties on the outstanding amount is claimable through QCAT. No transfers were ever drawn up for the respondent only the previous person. This is a rental/purchase agreement. If a person does not continue then all payments are classed as rent and are non refundable. We are claiming for monies expended on behalf of the purchaser to the Council and the insurance company. The $772.75 per month is only the amount you would expect to pay as rent. We claim rates of $1,206.00 and insurance of 41,179.00 and interest of $610.00 on these two amounts. The final amount of $7,894.66 for interest on monies not paid over three years which the respondent has agreed to -- 2 of 4 -- 3 pay… quite clearly the first part of our claim totalling $13,507.42 comes under the jurisdiction of QCAT.” [8] This latter summation, in particular, is a complete and utter jumble. The interest generally highlighted by the applicant in the account summary alone totals $24,120.67 with rates payments recorded at $1,879.70 and insurance at $468.90. How interest on rates and insurance is calculated is not clear. How interest of $7,894.66 is calculated is impossible to discern. How the first part of the applicant's claim ie $13.507.42 “clearly… comes under the jurisdiction of QCAT” is not at all clear. The contract [9] The contract dated 8 August 2008 (as opposed to the agreement dated 8 August 2008) accompanying the further letter is clearly a contract for the sale and purchase of land. It recites the real property description of the land sold and at clause 36 states “the purchaser agrees to purchase the property over 30 years…minimum instalments of $732.95 per month over 30 years… the first instalment due on the signing of this contract.” Clause 18 states “all transfer documents are to be held in escrow…pending full and final settlement.” A copy of a handwritten note under the hand of Clarence Gibbons director of the applicant states “the contract is done on a tenants in common set up so you both own 50%. That will always be your share, on death it goes to your estate.” [10] Attached was a “notice of default under instalment contract” dated 26 September 2011 requiring payment of $35,742.75 within 30 days. [11] Also attached was a letter from the applicant to the respondents dated 22 November 2011 stating “your contract has been cancelled. You are required to leave the property immediately.” Conclusions [12] The monies claimed by the applicant clearly arise out of alleged contractual obligations on the part of the respondents during the approximate 3 year period from 8 August 2008 and the alleged failure of the respondents to fulfil these obligations. The contract documents produced by the applicant make it clear the contract was an instalment contract for the purchase of land. [13] In any event the sum claimed can not be calculated. There is no table, formula or other methodology by which the sum of $24,528.00 can be arrived at. [14] In the letter of 6 February 2012 the applicant asserts the “total outstanding of $46,050.42 reduced to $24,796.00 only claiming for monies borrowed, interest, rates, insurance plus rents not paid while the respondents have stayed on the property.” -- 3 of 4 -- 4 [15] It is clearly impossible to treat the claim as a liquidated sum or debt in circumstances where it is not clear in what proportions the various components of the claim have been included to make up the sum claimed (which itself has been reduced to a figure to bring it within the quantum jurisdiction of the Tribunal). [16] The claim cannot be characterised as a liquidated debt on information furnished by the applicant. Crucially however the sum claimed if indeed a debt arises out of a contract for purchase of land and is consequentially not within the minor civil dispute jurisdiction of the Tribunal. The relevant legislation would more likely be the Property Law Act 1974. Order [1] The application is dismissed for want of jurisdiction. -- 4 of 4 --