Cockrell v Mackey t/as Tablelands Premium Property

CITATION: Cockrell v Mackey t/as Tablelands Premium Property [2014] QCATA 136

PARTIES:	William James Cockrell (Applicant/Appellant)
v
Laurel Joan Mackey t/as Tablelands Premium Property (Respondent)

APPLICATION NUMBER: APL121 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 2 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for leave to appeal is granted.

2.    The appeal is allowed.

3.    The decision of 4 February 2014 is set aside and the application to set aside a decision by default is allowed.

4.    The appellant must file a response to the application in QCAT Claim – Atherton No. MCD0026/13 within three weeks of receiving these reasons for judgment.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR  CIVIL DISPUTE – QUESTION OF FACT AND LAW – where  decision made by default for respondent – where applicant’s application to set aside decision by default refused – whether grounds for leave to appeal – whether prejudice to respondent – whether Magistrate properly considered  if appellant had arguable case – whether Magistrate’s findings led to error of law – whether arguable case – whether decision by default should be set aside

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i), s 147

Pickering v McArthur [2005] QCA 294, applied
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, considered
Telco Australia Limited v Favell & Anor [2002] QSC 208, applied

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. Mr Cockrell signed a Form 22a – appointment of a real estate agent – appointing Ms Mackey to sell a property at Herberton. He signed on his own behalf and under a power of attorney for his wife, as they owned the property as joint tenants. The exclusive agency box on the Form 22a was marked with a cross.

2. During the exclusive agency period, Mr Cockrell sold the property through another agent. Ms Mackey claimed the commission due under the agreement and Mr Cockrell refused to pay. Ms Mackey filed a claim in the minor civil disputes jurisdiction of the tribunal and, when Mr Cockrell failed to file a response, she obtained a decision in default.

3. Mr Cockrell applied to set aside the decision by default. A Magistrate, sitting as a member of the tribunal, refused that application.

   Grounds of appeal

4. Mr Cockrell has filed an application for leave to appeal. His grounds of appeal, annexed to his application, take issue with a number of the Magistrate’s findings. He says that the Magistrate erred in law and fact.  Mr Cockrell submits that the Magistrate’s finding that he entered into an exclusive agency agreement is an error of fact. He says that he has a defence on the merits, which the Magistrate failed to consider when deciding the application to…