Dubow v Slyvan Developments Pty Ltd [2011] QCATA 281

CITATION: Dubow v Slyvan Developments Pty Ltd [2011] QCATA 281 PARTIES: Yolande Victoria Frances Dubow (Applicant/Appellant) v Slyvan Developments Pty Ltd t/a Coral Coast Realty (Respondent) APPLICATION NUMBER: APL172-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Acting President DELIVERED ON: 7 October 2011 DELIVERED AT: Brisbane ORDERS MADE: The Application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where application for a liquidated demand of money – whether claim was liquidated – whether conduct of hearing warranted leave to appeal Queensland Civil and Administrative Tribunal Act 2009, ss 14, 100, 102, 142(3)(a)(i) Cachia v Grech [2009] NSWCA 232 at 2 followed Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 applied QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 applied Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 applied -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Dubow is the owner of rental premises in Bundaberg. She engaged Slyvan Developments Pty Ltd (Slyvan) to manage the property. After the tenant fell behind on rental payments, the lease was terminated and the agent, on behalf of Ms Dubow, took action to recover the bond. The agent deducted a sum from the bond and forwarded the balance to Ms Dubow. Ms Dubow says Slyvan was not entitled to make the deduction and claimed it as a liquidated debt. [2] This is an application for leave to appeal against a decision by an Acting Magistrate sitting in his capacity as a Member of the Tribunal. Ms Dubow alleged that he wrongly treated her application as a claim for unliquidated damages, rather than as a liquidated claim. [3] She also raised grounds relating to the conduct of the hearing. She said the Magistrate did not give reasons. He subsequently provided these, albeit in brief form. Ms Dubow also complained about statements made by the Magistrate during the hearing. Finally, she argued she should have received interest, although she did not claim this, and her filing fee. [4] Leave to appeal is required to appeal from a decision arising from a Minor Civil Dispute.1 The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 Is Ms Dubow’s claim liquidated? [5] According to Slyvan, when the tenancy was terminated, the tenant owed Ms Dubow $1,626.10 comprised of 5 weeks in rental arrears ($1,350) plus $276.10 for the cost of carpet cleaning incurred by Slyvan because the tenant failed to attend to this. Slyvan recovered the bond of $1,080 from the Residential Tenancies Authority and paid $744.50 to Ms Dubow. It retained the balance as reimbursement for the carpet cleaning ($276.10) 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. -- 2 of 4 -- 3 and as commission on securing the rental bond ($59.40), a total of $335.50. The learned Acting Magistrate determined Slyvan had wrongly retained that sum and ordered it to pay that to Ms Dubow. [6] Ms Dubow’s claimed $881.60, a figure arrived at by deducting the amount paid by Slyvan from the bond ($744.50) from the amount owed by the tenant at termination ($1,626.10). Ms Dubow described this as a liquidated claim. She also claimed her $51 filing fee and interest if allowed. [7] A claim is “liquidated” when the sum is ascertained, or capable of being ascertained by calculation through the use of a formula.6 Unliquidated damages arise when a claim is made for a sum which cannot be determined without the Tribunal considering the applicant’s evidence in support of the claim – for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.7 [8] The learned acting Magistrate rightly questioned: a) Whether this really was a liquidated debt, instead identifying the claim as a claim, for damages for breach of the agency agreement; and b) Whether the Tribunal had jurisdiction to deal with it. [9] Ms Dubow may well have a claim against the agent for damages for breach of the agency agreement relating to a failure to collect rent or to fulfil other obligations under the agency agreement. However, unless it is framed within the jurisdiction of the Tribunal it cannot be brought here. The learned Acting Magistrate was right to give due consideration to this at the outset. He correctly applied the legal test and arrived at a sound conclusion that Ms Dubow’s claim was not a liquidated claim. [10] Apparently, the learned Acting Magistrate was satisfied that, nevertheless, the Tribunal had jurisdiction to deal with the matter and neither party complained about that decision. He then determined whether Ms Dubow was entitled to any part of the rental bond retained by Slyvan. [11] Ms Dubow did not establish any basis for Slyvan to be held responsible for the tenant’s rental arrears. The learned Acting Magistrate correctly identified that, under their agreement, Slyvan was not authorised to contract a service in excess of $100 and, therefore, could not reimburse itself from the bond for the carpet cleaning. He also found the agent could not recover commission on the bond under the terms of that agreement. The amount awarded represented those two figures. I see no error in those findings. 6 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, 142. 7 QCAT Practice Direction 9 of 2010. -- 3 of 4 -- 4 [12] Ms Dubow also argued she was entitled to her costs (the filing fee) and interest. With respect to her costs the starting point is that each party usually bears their own costs.8 The tribunal may make an order requiring a party to pay the costs of another party if the tribunal considers the interests of justice require it to make the order.9 On the evidence before him and given the limited success of Ms Dubow’s claim, it was open to the learned acting Magistrate to conclude that costs should not be awarded. There was no miscarriage of his discretion. [13] As to her claim for interest, once again this arose from her misconception that hers was a liquidated claim.10 It was not. Ms Dubow did not assert any other basis upon which interest should be awarded. Conduct of the hearing [14] Ms Dubow complained about the learned Acting Magistrate’s conduct of the proceedings and various statements she attributed to him. In particular, she reported that he said ‘We’ve been going around in circles. I’m just going to toss a coin’. ‘We’ve been going around in circles. I’m just going to toss a coin’.11 Regrettably, this is what the Magistrate did say. The statement was ill-considered and conveyed an inaccurate impression that he would not proceed according to a proper assessment of her claim on the merits. In fact, he did not toss a coin, as his findings amply demonstrate. Rather he examined the evidence before him to determine whether Ms Dubow had a legitimate claim to a refund of the withheld bond money. [15] The Appeal Tribunal must assess the Magistrate’s conduct in its context. The transcript discloses his persistent attempts to extract from Ms Dubow, her reasoning for the amount claimed. It is clear that he grew increasingly frustrated with her inability to concisely articulate the basis for her claim. The transcript also reveals that Ms Dubow’s conduct bordered on, if not crossed over into disrespect, unwarranted by the Magistrate’s questioning of her claim. Whilst Ms Dubow’s conduct does not excuse his foolhardy statement, the context does affect the view the Appeal Tribunal takes of it. [16] However unwise he was in what he said at the end of the hearing, the Magistrate did not err in either his process of reasoning or his conclusion on the merits of her claim. [17] Ms Dubow has not made out an arguable case of error. Leave to appeal is refused. 8 Queensland Civil and Administrative Tribunal Act 2009, s 100. 9 Queensland Civil and Administrative Tribunal Act 2009, s 102. 10 Queensland Civil and Administrative Tribunal Act 2009, s 14. 11 Transcript of Proceedings, pg 29, 5 May 2011. -- 4 of 4 --