Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd

CITATION: Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

PARTIES:	Breezeway Developments Pty Ltd (Applicant/appellant)
v
ADG Hydraulics Pty Ltd (Respondent)

APPLICATION NUMBER:            APL128 -10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Susan Gardiner, Member

DELIVERED ON:   11 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Leave to appeal refused

CATCHWORDS : 

MINOR CIVIL DISPUTE  –  DECISION IN ABSENCE OF PARTY – LEAVE TO APPEAL –  where appellant filed response but failed to attend hearing due to error of its own – where applicant seeks leave to appeal decision – where applicant does not address usual test for leave – whether leave should be granted

MINOR CIVIL DISPUTE  ­–  REOPEN PROCEEDINGS – where adjudicator made decision against appellant in its absence – where appellant could have applied to reopen  proceedings – whether reasonable excuse for non-attendance

Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 13(1), 28(3)(d), 50, 51, 61, 62(1), 93, 137, 138, s 142(3)(a)(i)

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, cited

REASONS FOR DECISION

President:

1. I have had the advantage of reading the decision of QCAT Member Ms Susan Gardiner in draft.  I generally agree with her reasons, and her conclusion, and the order she proposes.  I wish, however, to add some remarks concerning the applicant’s position had it chosen to apply to have the judgment against it set aside or the proceedings reopened rather than apply, as it has, for leave to appeal.

1. Strictly speaking the adjudicator’s decision here was not a ‘decision by default’ under Chapter 2, Part 5, Division 2 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). In that Division, s 50 permits a decision by default for debt in circumstances were a respondent must respond to an application to recover a debt or liquidated demand of money, and fails to do so. Under s 51 that decision by default may be set aside, on application by the respondent, at the Tribunal’s discretion.

1. What occurred here, as the helpful reasons of the learned adjudicator of 22 June 2010 show, was that the respondent in the original proceedings (the applicant here, Breezeway Developments Pty Ltd) failed to attend for a mediation and the adjudicator, as she was entitled to do, proceeded to a hearing and decided the matter in the absence of the appellant – the procedure allowed under s 93 of the QCAT Act.

1. Under Chapter 2 Part 7 Division 7 of the QCAT Act a party who does not appear at a hearing but has a reasonable excuse for not attending may apply to the Tribunal for the proceeding to be reopened: ss 137, 138. That application has to be brought within twenty-eight days of the hearing. In this case the hearing occurred on 22 June 2010 and Breezeway Developments lodged its application for leave to appeal on 29 June 2010. Hence the applicant brought a proceeding well within that…