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The Queensland Civil and Administrative Tribunal (QCAT) can be an accessible and efficient option for persons wishing to resolve a civil or administrative matter, while circumventing the deterring complexities and costs that can be involved if they engage in formal Court proceedings.
Although on its face it may be an attractive alternative to the Court systems, persons seeking to invoke the Tribunal’s civil jurisdiction must be mindful that it is limited to those bringing minor civil disputes, as defined under section 12 of the Queensland Civil and Administrative Tribunal Act 2009.
The precise compass of this limitation can be misconstrued or misunderstood by many applicants, whose claim may not actually fall within the ambit of Section 12.
For those seeking to utilise the powers of the Tribunal all should be reminded that the monetary limit of the Tribunal’s jurisdiction is $25,000.
This excludes any amount of interest owing on the sum, and any interest that may be awarded by the tribunal under section 14 of the Act. Further, section 12 qualifies the Tribunal’s jurisdiction to those who are relevant persons within the meaning of subsection 4.
Although the section mandates that the applicant meet specific criteria, the subsections of 12(4) also specify that the claim must pertain to a particular category, or stem from specific legislation. Therefore, it’s important to understand that any condition regarding the type of claim also implies that the applicant must be an eligible person to apply to utilise the Tribunal.
It should be noted that the three broad types of claims that can be made to the Tribunal by an eligible person are:
- claims to recover a debt or liquidated demand;
- claims arising out of a contract between a consumer and trader; and
- claims arising out of a contract between 2 or more traders.
It follows, that these three types of claims may only be brought by the person to whom the debt is owed, the consumer, or any the traders, respectively.
Additionally, the Tribunal by its act permits at subjections 12(4)(d)-(g) that remedy can be sought by:
- persons incurring loss as a result of a property damage caused by a vehicle;
- eligible persons seeking a decision under the Residential Tenancies and Rooming Accommodation Act 2008
- eligible parties seeking a decision in relation to a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
- eligible persons seeking a decision under Building Act 1975, chapter 8, part 2A
Whether a person has standing to apply to QCAT under subsections 12(4)(e)-(f), will depend on any additional requirements imposed by the legislation the dispute concerns.
Therefore, persons wishing to apply to QCAT for those matters should confirm their eligibility by referring to the relevant Act.
Where relief is sought in relation subsections 12(4)(a)-(b), confusion tends to lie regarding the proper meaning of ‘liquidated demand’ as well as who can be considered a ‘trader’ under subsections 12(4)(b)(c).
The concept ‘liquidated demand’ has been afforded consideration by Courts where it is incidental to certain rules of civil procedure. Tribunal Members have adopted the definition used by Courts, of a sum that can be “calculated or ascertained by a formula”[1]. A ‘debt’ is simply an ascertainable amount of money and, therefore, a type of liquidated demand. It therefore is quantified.
A claim that is capable of being calculated by formula must be distinguished from one that can only be calculated by reference to invoices and quotations. The latter is a claim for damages, and considered an ‘unliquidated demand’[2]. Refunds of monies paid under a contract[3], solicitors’ fees incurred on a time-cost basis[4] and services rendered at an hourly rate[5] are all examples of liquidated demands.
Another reason a claim may fail for want of jurisdiction in QCAT is when an applicant mistakenly asserts they are a party to a contract with a ‘trader’, when in reality, they are not. A trader is a person in the business of supplying of goods or services that are ordinarily regarded as being within ‘trade or commerce’. The essence being that the transaction bears “commercial character”[6]. Solicitors, podiatrists, town planning consultants, and valuers are all examples of persons non considered traders by the Tribunal[7].
If you are unsure whether your matter can be heard by QCAT, please contact our litigation team on 07 3839 8011.
Authored by Jenna Behr in collaboration with Mark Smith (Senior Partner – Brisbane).
[1] Green v Tri-Barfen Pty Ltd [2006] QDC 160 per Judge Wilson at paragraph [6] and cited in Rains v Scamp [2013] QCATA 96 [5]
[2] An unliquidated demand is one that can only be ascertained by assessment, requiring the exercise of discretion and/or opinion.
[3] Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161
[4] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87
[5] Laffey & Coastalite Pty Ltd v L & V Project Pools Pty Ltd [2019] QCAT 238
[6] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, at 601
[7] Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87; McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126; Davy v Ryter Planning Pty Ltd [2010] QCATA 96; Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
