Clipstar Pty Ltd v Kearns-Healey - [2011] QCAT 58

CITATION:

Clipstar Pty Ltd v Kearns-Healey [2011] QCAT 58

PARTIES:	Clipstar Pty Ltd
v
Steven Kearns-Healey

APPLICATION NUMBER:

BDL354-10

MATTER TYPE:

Building matters

HEARING DATE:

23 February 2011

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

23 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] That the default decision dated 9 December 2010 be set aside;

[2] That the proceeding be listed for a compulsory conference at 1.30pm on 15 April 2011 at Brisbane.

CATCHWORDS :

Application to Set Aside Default Decision – where prima facie or arguable response to claim – where response filed late but explanation given – where application to set aside default decision filed promptly

Queensland Civil and Administrative Tribunal Act 2009 – section 51
Queensland Civil and Administrative Tribunal Rules 2009 – Rule 44

Evans v Bartlam [1937] AC 473
Taylor v Taylor (1979) 143 CLR 1
Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
National Australia Bank Ltd v Singh [1995] 1 Qd R 377

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] 1 Qd R 142

APPEARANCES:

This proceeding was heard on the papers in the absence of the parties.
REASONS FOR DECISION

Clipstar Pty Ltd (Clipstar or the applicant) made application regarding a domestic building dispute seeking orders that the respondent pay the sum of $33,033 for a debt owing, or in the alternative payment on a quantum meruit basis, in relation to the supply and installation of plasterboard at the respondent’s home. The application was served on the respondent, Mr Kearns-Healey, on 16 November 2010.
On 1 December 2010, the applicant requested that a decision be made by default for the full amount of the claim together with costs and interest as a response had not been served and the amount had not been paid. The request was accompanied by a supporting affidavit.
On 9 December 2010, Senior Member Oliver made a decision by default that the respondent pay to the applicant the amount of $36,882.68, being the amount claimed, interest of $2,289.68 and costs.
On 20 December 2010, the respondent filed a response to the application concerning the claim and an application to set aside the default decision made on 9 December 2010. The respondent’s application to set aside the default decision states that when he was served with the application he was advised that he had 28 days to respond, and that the application is incorrect and he denies that there was a debt owing as alleged by the applicant.
The response to the applicant’s claim broadly contends that there was no contract, written or otherwise, whereby the respondent was to pay money to the applicant for the supply and installation of the plasterboard. It acknowledges a quote dated 3 April 2009 for $20,423.70 but contends a ‘contra deal’ between the respondent and Rick Halstead, a director of Clipstar Pty Ltd. The contra deal alleged in the…

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: [2011] QCAT 58
Decision Date: 23 February 2011

CaseChat Overview and Summary

The dispute in Clipstar Pty Ltd v Kearns-Healey involves Clipstar Pty Ltd, the plaintiff, and Kearns-Healey, the defendant, with the Queensland Civil and Administrative Tribunal (QCAT) presiding over the matter. Clipstar filed a claim against Kearns-Healey, and despite the defendant's late response, an application to set aside a default decision was made. The defendant's response, although filed late, was accompanied by an explanation for the delay, and the application to set aside the default was filed promptly.

The primary legal issue before the tribunal was whether the default decision, rendered on 9 December 2010, should be set aside. The tribunal needed to determine if the defendant's late response, which included an explanation, constituted a prima facie or arguable case, and if the application to set aside was filed in a timely manner. The tribunal's decision hinged on interpreting sections 51 of the Queensland Civil and Administrative Tribunal Act 2009 and Rule 44 of the Queensland Civil and Administrative Tribunal Rules 2009.

The tribunal found that the defendant's late response, while not ideal, contained sufficient arguments to constitute a prima facie case. Additionally, the application to set aside the default decision was filed promptly, which was a critical factor in the tribunal's decision. Therefore, the tribunal decided to set aside the default decision and list the proceeding for a compulsory conference. The tribunal's decision underscored the importance of timely applications to set aside default decisions and the consideration of explanations for late responses.

The tribunal issued two orders: firstly, the default decision dated 9 December 2010 was set aside, and secondly, the proceeding was scheduled for a compulsory conference at 1.30pm on 15 April 2011 in Brisbane. This decision allowed the case to proceed on its merits, ensuring that both parties had an opportunity to present their arguments.

Orders

Orders of the court

[1] That the default decision dated 9 December 2010 be set aside;

[2] That the proceeding be listed for a compulsory conference at 1.30pm on 15 April 2011 at Brisbane.

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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