Amedee & Associates v Absynthe Restaurant Trust

[2014] QCAT 370

CITATION: Amedee & Associates v Absynthe Restaurant Trust [2014] QCAT 370

PARTIES:	Amedee & Associates (Applicant)
v
Meyjitte Boughenout t/as Absynthe Restaurant Trust (Respondent)

APPLICATION NUMBER: MCDO1889-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 27 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application to set aside or amend the default decision is refused.

CATCHWORDS: Default decision – factors to be considered in setting aside decision – adequacy in addressing those factors – sufficiency of material to justify setting aside of default decision

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The initiating applicant Amedee & Associates filed a minor debt application on 16 September 2013 seeking $3,932.94 on account of three invoices for business and accountancy services conducted for and on behalf of the respondent.  The initiating application was served on 3 October 2013.  According to the affidavit of service of Ross Williams he identified the respondent by asking ‘Are you Meyjitte Boughenout’. The person served said ‘Yes I am’.  Mr Williams asked ‘Are you Meyjitte Boughenout the person referred to in these documents’.  The person served appeared to read through the documents and reply ‘Yes I am’.

2. Some time later on 6 December 2013 default decision was entered in favour of the applicant in the absence of any response being filed by the respondent Meyjitte Boughenout.

3. In December 2013/January 2014 an application was made to obtain a copy of the Registry file. In particular on 13 January 2014 a request was made by Lee Lawyers for a photocopy of the Registry file to be sent to that firm by email.

4. On 12 June 2014 an application to set aside or amend a default decision was filed by Meyjitte Boughenout.

Failure to lodge a response

1. The application to set aside does not proffer any reason for the delay in making the application to set aside the default decision.

2. The ‘Warning to Respondents’ was recited on the face of the Minor Debt (Form 3) application is clear namely that:

   You must respond to this application by completing and lodging Form 7 – Response to Minor Civil Dispute – Minor Debt within 28 days after you are given a copy of the application. Otherwise, the applicant may apply to the Tribunal for a decision by default against you.

3. The statement with respect to the lodgement of a response is clear. There is information on the QCAT website to assist with procedure. There appears to be no good reason why Meyjitte Boughenout failed to lodge a response within the allocated timeframe given that he was served personally on 3 October 2013.

Delay

1. The default decision was entered on 6 December 2013 with the application to set aside being made on 12 June 2014.  No explanation for delay.

Prima Facie Defence on the Merits

1. Mr Boughenout at F1 on page 2 of 4 of the application to set aside states that he has been overcharged for work provided.  There is no explanation of what was overcharged for nor the extent of the overcharging.  He then says that the work done was not to his satisfaction.  No explanation of what was not to his satisfaction is forthcoming.  He then asserts that he ended up with debts to the Australian Taxation Office for work not completed on time.  Once again there is no explanation or detail given with respect to applicable time frames.  There is no suggestion that work was not performed.  Rather an offer is made at item F4 on page 2 of 4 of the application to set aside.  That offer is to pay $2,000 ‘as a gesture’.

2. At best the application to set aside could be construed as a general dissatisfaction with the work performed with no explanation provided as to what that dissatisfaction was.  With respect to debts incurred with the Australian Taxation Office when and how much is not alluded to.

3. Whilst it is only necessary to show a prima facie defence on the merits it is not enough to leave it to one’s imagination as to what that defence is going to be.

In finality

1. It is now many months down the track from when the default decision was entered and with the best that can be mustered in terms of the application to set aside are bald generalisations of overcharging, dissatisfaction and accrual of debts none of which are explained, detailed or extrapolated upon in any manner whatsoever.

2. The delay is significant and unexplained.  There is nothing in or about the short statement provided by Mr Boughenout that constitutes a sufficient prima facie defence on the merits.

3. The application to set aside is dismissed.