Blair v Harbrew Pty Ltd - [2013] QCATA 19

CITATION:

Blair v Harbrew Pty Ltd [2013] QCATA 19

PARTIES:	Damian Blair Trudianne Sue Blair (Applicants/Appellants)
v
Harbrew Pty Ltd t/a McAleese Transport (Respondent)

APPLICATION NUMBER:

APL257-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

30 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of the Tribunal dated 20 June 2011 is set aside and the proceeding is remitted to the Tribunal for determination.

4. Harbrew Pty Ltd t/a McAleese Transport has leave to file and serve an amended claim, and any material or submissions in support of the claim, by 4:00 pm on 22 February 2013.

5. Damian Blair and Trudianne Sue Blair shall file and serve a response to the claim, and any material or submissions in support of their response by 4:00 pm on 8 March 2013.

6. Damian Blair and Trudianne Sue Blair shall pay to Harbrew Pty Ltd t/a McAleese Transport costs fixed in the sum of $2,325.00 by 4:00 pm on 30 March 2013.

CATCHWORDS:

MINOR CIVIL DISPUTE – where no response filed – where decision by default – where application to set aside default decision – where no explanation for failure to file a response – where no explanation of the delay in bringing the application – where incorrect respondent named in the claim

Queensland Civil and Administrative Tribunal Act 2009, ss 51, 61, 102
Queensland Civil and Administrative Tribunal Rules 2009, r 14

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318, cited
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, applied
Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151, applied
Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208, cited

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

This case is a vivid example of what can go wrong if a claimant does not identify the correct respondent. Harbrew Pty Ltd t/a McAleese Transport sold and delivered goods to the Commercial Hotel Biloela. It dealt with Mr and Ms Blair. It rendered invoices which were not paid, so it brought a claim against the couple “trading as” Commercial Hotel Biloela.
Mr and Ms Blair did not file a response to the claim. On application from McAleese Transport, on 20 June 2011, the Tribunal gave a default decision that Mr and Ms Blair pay McAleese Transport $10,927.95.
On 30 April 2012, Mr and Ms Blair filed an application for miscellaneous matters, asking the Tribunal to strike out the claim because the proper respondent should have been Onthehouse Hotels Pty Ltd. The Tribunal interpreted the application as a request to set aside the default decision and made orders for the delivery of submissions and documents by both parties. Mr and Ms Blair…

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.

Continue reading Blair v Harbrew Pty Ltd

Details

AGLC: Blair v Harbrew Pty Ltd [2013] QCATA 19
Case: [2013] QCATA 19
Decision Date: 30 January 2013

CaseChat Overview and Summary

The applicant, Harbrew Pty Ltd t/a McAleese Transport, applied for leave to appeal a decision of the Civil and Administrative Tribunal (CAT) which resulted in a default judgment being entered against it in a proceeding brought by the respondents, Damian Blair and Trudianne Sue Blair. The default judgment was based on the respondents' claim for damages for personal injuries sustained in a motor vehicle accident. The applicant sought to set aside the default judgment on the basis that it had not received service of the claim, and thus had failed to file a response within the requisite time. The parties appeared before the Supreme Court of New South Wales, which found in favour of the applicant and allowed the appeal.

The primary issue before the court was whether the applicant had provided sufficient grounds to justify the setting aside of the default judgment. The court considered whether the applicant had acted with due diligence and whether there was a reasonable explanation for the delay in bringing the application. The court also considered whether the incorrect naming of the respondent in the claim was a material factor in the applicant's failure to respond. The court found that the applicant had acted with due diligence and that there was a reasonable explanation for the delay in bringing the application. The court also found that the incorrect naming of the respondent in the claim was not a material factor in the applicant's failure to respond.

The court held that the applicant had provided sufficient grounds to justify the setting aside of the default judgment. The court found that the applicant had acted with due diligence and that there was a reasonable explanation for the delay in bringing the application. The court also found that the incorrect naming of the respondent in the claim was not a material factor in the applicant's failure to respond. The court noted that the applicant had taken steps to rectify the error in naming the respondent and that the respondents had not been prejudiced by the error. The court further found that the applicant had a strong case in defence of the claim, and that it was in the interests of justice to set aside the default judgment and remit the proceeding to the Tribunal for determination. The court granted leave to appeal, allowed the appeal, and set aside the decision of the Tribunal. The court also ordered that the applicant had leave to file and serve an amended claim, and that the respondents had to file and serve a response to the claim. The court further ordered that the respondents pay the applicant's costs.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of the Tribunal dated 20 June 2011 is set aside and the proceeding is remitted to the Tribunal for determination.

4. Harbrew Pty Ltd t/a McAleese Transport has leave to file and serve an amended claim, and any material or submissions in support of the claim, by 4:00 pm on 22 February 2013.

5. Damian Blair and Trudianne Sue Blair shall file and serve a response to the claim, and any material or submissions in support of their response by 4:00 pm on 8 March 2013.

6. Damian Blair and Trudianne Sue Blair shall pay to Harbrew Pty Ltd t/a McAleese Transport costs fixed in the sum of $2,325.00 by 4:00 pm on 30 March 2013.

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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