Curtas Pty Ltd t/as Aviation College v Gilham
[2015] QCATA 103
•13 July 2015
| CITATION: | Curtas Pty Ltd t/as Aviation College v Gilham [2015] QCATA 103 |
| PARTIES: | Curtas Pty Ltd t/as Aviation College (Applicant/Appellant) |
| v | |
| Chris Gilham (Respondent) |
| APPLICATION NUMBER: | APL148 -15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 13 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where claim for debt – where application for extension of time to file response – where extension granted – where response not filed within extended time – where application to set aside default decision dismissed - whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 |
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
In early 2013, Chris Gilham lent Curtas Pty Ltd t/as Aviation College $25,500. By June 2014, Mr Gilham wanted his money back. A repayment schedule was proposed; Curtas did not meet the schedule. Mr Gilham filed an application for the return of his loan.
Curtas’ response was due by 25 September 2014. On that day, its lawyers filed an application for an extension of time for the filing of a response until 23 October 2014. On 29 September 2014, the tribunal wrote to the parties, giving a copy of the application to Mr Gilham and calling for submissions within 10 days. In its application, Curtas nominated its lawyers as the address for service. Unfortunately, the tribunal sent the letter to Curtas’ accountant.
The tribunal received Mr Gilham’s submissions on 1 October 2014. By letter dated 13 October 2014, the tribunal granted an extension of time until 23 October 2014 in which to file a response.
Curtas did not file a response. On 29 October 2014, the tribunal granted Mr Gilham a decision in default of a response. Curtas applied to set aside the default decision. The tribunal dismissed the application.
Curtas wants to appeal that decision. Curtas submits that, contrary to the learned Judicial Registrar’s decision, it does have a satisfactory explanation for the failure to file a response, it has a good reason for its delay in filing the application to set aside the default decision, and it has established a good defence on the merits.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
A satisfactory explanation for the failure to file a response?
Curtas submits that, had the tribunal sent the letter of 29 September 2014 to its lawyers, it would have been able to respond within time. The tribunal was in error in sending correspondence to Curtas’ accountants. But I am not satisfied that this error affected the company’s ability to file a response within the extended time.
Curtas’ accountant received the letter calling for submissions on 1 October 2014. Curtas’ directors did not see it until 10 October 2014. There is no explanation for the delay between the accountant’s receipt of the letter and the directors’ receipt of the letter. If the accountant was Curtas’ registered office, then it should have been aware of the requirement to forward legal documents to its officers promptly.
When Curtas received the letter, its directors misread it. Its lawyers misread it. They wrongly assumed that 9 October 2014 was the date for filing a response rather than the date for filing submissions about the extension of time application. Curtas has not explained why it took no action after 9 October 2014. It has not explained why it did not file a further application for an extension of time. It has not explained why it did not react to the letter of 13 October 2014 in which the tribunal granted an extension of time.
I agree with the learned Judicial Registrar that Curtas has not provided a satisfactory explanation for its failure to file a response.
A good reason for delay in filing the application to set aside the default decision?
As the learned Judicial Registrar noted, there was a delay of five weeks between Curtas receiving the default decision and its application to set that decision aside. Curtas’ submissions to the appeal tribunal do not address this delay. I agree with the learned Judicial Registrar that Curtas has not provided a satisfactory explanation for its delay in filing an application to set aside the decision.
A good defence on the merits?
The learned Judicial Registrar observed that Curtas did not dispute: the amount of the loan; that interest was payable; that it had repaid only $4,010; the terms of the loan were varied in mid-2014; and that Curtas had not made any repayments since June 2014. The learned Judicial Registrar observed that Curtas’ only defence to the claim was that it was not in breach of the loan agreement. The learned Judicial Registrar found that the emails did not support Curtas’ view.
Curtas now asserts a fresh ground of defence. It asserts that, as at June 2014, Mr Gilham set up in opposition to Curtas which was clearly an attempt to sabotage Curtas. Why a creditor would attempt to sabotage a company that owed him $25,000 is not explained.
Curtas also submits that some of the debt has been repaid. None of these repayments is explained in detail, and none of them is supported by sworn evidence. The defence is novel, late and not persuasive. For slightly different reasons, again, I agree with the learned Judicial Registrar that Curtas has demonstrated a good defence on the merits.
The learned Judicial Registrar was not in error. Leave to appeal should be refused.
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