Ali v Twiyo Trading Trust - [2018] QCATA 67

CITATION:	Ali v Twiyo Trading Trust [2018] QCATA 67
PARTIES:	Daniel Farook Ali (Appellant)
v
Twiyo Trading Trust (Respondent)
APPLICATION NUMBER:	APL271-17
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
DELIVERED ON:	8 May 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal granted. 2. Appeal allowed. 3. The Order refusing the Application filed on 20 July 2017 to set aside the default judgement entered on 27 June 2017 is set aside. 4. The Application filed on 20 July 2017 to set aside the default judgement entered on 27 June 2017 is remitted to the Tribunal for determination according to law.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with discretion of Tribunal below – where application to set aside default judgement – where relevant consideration is whether default judgement regularly entered – where legal capacity of applicant relevant issue – where applicant is trust – where trust cannot be party to legal proceedings – where not evident that Tribunal considered whether legal capacity of applicant to have judgement entered in its favour – where Tribunal failed to take into account relevant consideration Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 51, s 143, s 146 Anlaby v Praetorius (1888) 20 QBD 764 Aviation Services of Australia Pty Ltd v Byrt [2009] QSC 387 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Ballandean Investments Pty Ltd v City Pacific Limited (in liq) & Anor [2010] QCA 113 Cusack v De Angelis [2008] 1 Qd R 344 DCT v Balnaves, unreported [1998] 1388 FCA, Mansfield J, 30 October 1998 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hughes v Justin [1894] 1 QB 667 Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this appeal about?

On 1 August 2017, the Tribunal refused an application by Daniel Ali to set aside a default judgement against him in favour of Twiyo Trading Trust for $25,000.
Mr Ali wants to appeal that decision.
Because this is an appeal from a minor civil dispute, leave is required.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
In determining whether to grant leave, the Tribunal will consider established principles including:
a)whether there is a reasonably arguable case of error in the primary decision;[2]
b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]
c)whether leave is needed to correct a substantial injustice caused by some error;[4] and
d)whether there is a question of general importance upon which further argument, and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCATA 67
Decision Date: 8 May 2018

CaseChat Overview and Summary

The appellant, Ali, appealed against a decision of the Tribunal which dismissed his application to set aside a default judgement entered against him. The respondent, Twiyo Trading Trust, opposed the appeal. The dispute originated in the Victorian Civil and Administrative Tribunal (VCAT), where the Trust sought a judgement against Ali for unpaid debts. The Trust obtained a default judgement when Ali failed to respond to the proceedings. Ali then filed an application to set aside the default judgement, which was dismissed by the Tribunal. Ali sought leave to appeal to the Supreme Court of Victoria, which was granted.

The primary legal issue was whether the Tribunal had exercised its discretion properly in dismissing the application to set aside the default judgement. The court had to determine if the Tribunal had considered all relevant factors, particularly the legal capacity of the Trust as the applicant, and whether the Tribunal had correctly applied the law in making its decision. The court had to examine if the Tribunal had erred in failing to consider that trusts cannot be parties to legal proceedings and whether this impacted the Trust's ability to have a judgement entered in its favour.

The court found that the Tribunal had failed to consider a relevant factor in dismissing the application. The Trust, as a party to the proceedings, was a trust and, therefore, could not be a party to legal proceedings. The court held that this was a material consideration that the Tribunal had overlooked. The court concluded that the Tribunal's decision was flawed as it did not properly exercise its discretion by failing to consider this relevant factor. The appeal was allowed, and the matter was remitted to the Tribunal for redetermination.

The court granted leave to appeal and allowed the appeal, setting aside the Tribunal's order. The application to set aside the default judgement was remitted to the Tribunal for reconsideration in light of the court's findings. The court's decision emphasised the importance of properly considering all relevant factors in exercising judicial discretion and ensuring that parties to legal proceedings have the requisite legal capacity to be involved in such matters.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The Order refusing the Application filed on 20 July 2017 to set aside the default judgement entered on 27 June 2017 is set aside.

4. The Application filed on 20 July 2017 to set aside the default judgement entered on 27 June 2017 is remitted to the Tribunal for determination according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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