Ayoubi v Butcher

[2018] QCATA 91

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ayoubi v Butcher [2018] QCATA 91

PARTIES:

ABDUL SAMEH AYOUBI
(appellant)

v

REBECCA LOUISE BUTCHER

(respondent)

APPLICATION NO/S:

APL287-17

ORIGINATING APPLICATION NO/S:

MCDQ 152/17

MATTER TYPE:

Appeals

DELIVERED ON:

2 July 2018

HEARING DATE:

27 June 2018

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Order refusing the Application filed on
31 July 2017 to set aside the default decision entered on 11 April 2017 is set aside.

4.   The Application filed on 31 July 2017 to set aside the default judgement entered on 11 April 2017 is allowed.

5.   The default decision entered on 11 April 2017 is set aside.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – interference with discretion of Tribunal below – where application to set aside default decision – where relevant consideration is whether default decision regularly entered – where originating application incorrectly filed as minor debt claim – where claim was for unliquidated damages – where party to proceeding cannot respond to minor civil dispute other than minor debt claim – where Tribunal failed to take into account relevant consideration – where appellant entitled to have default decision set aside as of right for being irregularly entered 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50A, s 51, s 143, s 146

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43

Cachia v Grech [2009] NSWCA 232
Cusack v De Angelis [2008] 1 Qd R 344
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Kuswardana v Minister for Immigration and 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

Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented 

Respondent:

Self-represented

REASONS FOR DECISION

What is this appeal about?

1. On 14 August 2017, the Tribunal refused an application by Abdul Ayoubi on

   
   

   31 July 2017 to set aside a default decision entered against him on 11 April 2017 in favour of Rebecca Butcher for $10,102.50. 

2. Ms Butcher had claimed an amount of $9,990.00 (plus filing fees) ‘for purchase price of $8,999.00 of vehicle, including registration costs, filling (sic) fees, fuel and breakdown costs incurred whilst owing (sic) said vehicle.’[1]

   [1]Application for minor civil dispute – minor debt dated 8 March 2017, annexure 1, paragraph 1.

3. Mr Ayoubi wants to appeal the decision refusing to set aside the default decision.

4. Because this is an appeal from a minor civil dispute, leave is required.[2]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).

5. 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;[3]

   b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[4]

   c)whether leave is needed to correct a substantial injustice caused by some error;[5] and

   d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[6]

   Did the Tribunal fail to take into account a relevant consideration in not setting aside default judgement?

   [3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]Cachia v Grech [2009] NSWCA 232, 2.

   [5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [6]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, 577, 580.

6. The Tribunal may set aside a default decision upon application by a Respondent.[7] In deciding an application to set aside a default decision, a relevant consideration is whether the default decision has been regularly entered.

   [7]QCAT Act, s 51.

7. The Appeal Tribunal is not satisfied that the default decision was regularly entered in circumstances where:

   a)the originating application was incorrectly filed as a minor debt; and

   b)a party to a proceeding cannot respond to a minor civil dispute other than a minor debt claim.[8] 

   [8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43.

8. Ms Butcher’s claim is for losses she claims to have suffered due to her purchasing a motor vehicle from Mr Ayoubi. Her claim includes the purchase price of the vehicle plus consequential losses including registration fees, roadworthy certificate fees, defect report fees, service fees and taxi fares.

9. Ms Butcher’s claim is not a minor debt claim. It is a claim for unliquidated damages. Unliquidated damages is where a claim is for a sum that cannot be determined without consideration by the Tribunal of the applicant’s evidence to support the claim.[9] Whether Ms Butcher is entitled to a refund of the purchase price in itself requires an assessment of loss and the extent of the alleged defects. She has since re-sold the vehicle in the last month for $2,000.00, which would need to be offset against her claim.

   [9]Practice Direction 9 of 2010.

10. Ms Butcher’s claim for damages arises from an alleged breach of the contract of sale or the Australian Consumer Law. This requires an assessment of compensation for loss occasioned by breach and is not readily quantifiable from the contract itself (which does not appear to have been filed).[10]

    [10]Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297.

11. This means that Ms Butcher filed the incorrect application to commence her claim. Unfortunately, this appears to have led the Tribunal into error by allowing

    
    

    Ms Butcher’s request for a decision by default when it was unable to do so. This is because a decision by default for unliquidated damages is limited to claims that require the filing of a response.[11] A party to a proceeding cannot respond to a minor civil dispute other than a minor debt claim.[12] 

    [11]QCAT Act, s 50A(1)(b).

    [12]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43.

12. This means that in exercising the discretion whether to set aside the default judgement, the Tribunal failed to take into account a relevant consideration. This failure to take into account a relevant consideration is an error of law.[13] For this reason, leave to appeal must be granted to correct a substantial injustice caused by the error. The appeal must be allowed and the Order refusing the application filed on 31 July 2017 to set aside the default decision entered on 11 April 2017 must be set aside.

    [13]Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186.

13. Mr Ayoubi cannot not have a default decision entered against him in circumstances where he cannot at law respond to the originating application. Mr Ayoubi is entitled to have the default decision set aside as of right for being irregularly entered.[14]

    [14]Cusack v De Angelis [2008] 1 Qd R 344, [36] (Muir JA); QCAT Act, s 146(b).

    What are the appropriate Orders?

14. The appropriate Orders are:

    a)Leave to appeal granted;

    b)Appeal allowed;

    c)The Order refusing the Application filed on 31 July 2017 to set aside the default decision entered on 11 April 2017 is set aside;

    d)The Application filed on 31 July 2017 to set aside the default decision entered on 11 April 2017 is allowed; and

    e)The default decision entered on 11 April 2017 is set aside.