Elders Real Estate Redcliffe v Prempac Group Pty Ltd
[2017] QCAT 44
•14 February 2017
CITATION: | Elders Real Estate Redcliffe v Prempac Group Pty Ltd [2017] QCAT 44 |
PARTIES: | Elders Real Estate Redcliffe |
| v | |
| Prempac Group Pty Ltd (Respondent) | |
APPLICATION NUMBER: | Redcliffe Q72/16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 8 December 2016 |
HEARD AT: | On the Papers |
DECISION OF: | Member Paratz |
DELIVERED ON: | 14 February 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application for an Interim Order filed on 6 December 2016 is dismissed. |
CATCHWORDS: | COURT PRACTICE & PROCEDURE – QUEENSLAND CIVIL PRACTICE – QCAT LEGISLATION - Where judgment by default for a liquidated debt was entered – where an application for an interim order was brought – where the power of the Tribunal to make an interim order was considered Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1), s 47(2), s 50(3), s 50(4), s 58(1) |
APPEARANCES:
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
A default decision was given by the Tribunal on 9 November 2016 as follows:
The Respondent(s), Prempac Group Pty Ltd, Warwick Jones, Katrina Osborne, pay to the Applicant(s) Elders Real Estate Redcliffe (Owner: Eldersred Property Holding Pty Ltd) t/as ATF Eldersred Corp Superannuation, the sum of $6,059.36 calculated as follows:
Claim: $5,843.76
Costs: $ 215.60
Total: $6,059.36
Prempac Group Pty Ltd filed both an ‘Application to set aside or amend a default decision’, and a separate ‘Application for interim order’, in the Tribunal at Redcliffe on 6 December 2016.
I made an Order on the papers on 8 December 2016 refusing the application for interim order.
An Adjudicator made an Order on the papers on 12 December 2016 refusing the application to set aside the default decision.
Katrina Osborne filed a Request for Reasons on 19 December 2016, seeking reasons for the decision made on 8 December 2016.
These are my reasons for my decision refusing an interim order.
Interim Order Application
The application for an interim order describes the order sought as follows:
1) Place a hold on the existing order until such time as our submission has been reviewed and decided.
The reasons for seeking the interim order are explained as follows:
1) Because due to severe ill health we were unable to lodge our submission on time.
2) We request the order be reviewed based on our submission, and to produce a more equitable outcome.
In effect, Ms Osborne is seeking a stay of the default judgment. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the Act’) does not provide for such a stay.
The appropriate course for a party against whom a default judgment has been entered, is to bring an application to set aside the default judgment as quickly as possible, which was done.
Section 58(1) of the Act provides that:
58 Interim orders
(1)Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example –
(a)to protect a party’s position for the duration of the proceeding; or
(b)to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding
Section 58(1) only gives the Tribunal power to make an interim order before a final decision in a proceeding is made.
Section 50 of the Act provides for the Tribunal to make a decision by default for debt or liquidated demand of money. Sections 50(3) and 50(4) provide as follows:
3) If the applicant applies for a decision by default under this section the principal registrar may make the decision.
4) A decision by default given under subsection (3) is taken to be a final decision of the tribunal in the proceeding.
The decision of the Tribunal made on 9 November 2016 therefore was a ‘final order’ under section 50(4), and the Tribunal has no power to make an interim order under section 58.
Section 47(1)(a) and 47(2)(a) of the Act provide that the Tribunal may order a part of a proceeding to be dismissed if it is misconceived.
The application for an interim order is misconceived, as there is no power in the Tribunal to make an interim order in the circumstances, and I order that the application be dismissed.
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