Elem Investments Pty Ltd v Blackbird Finance Pty Ltd

[2024] QDC 157

DISTRICT COURT OF QUEENSLAND

CITATION:

Elem Investments Pty Ltd & another v Blackbird Finance Pty Ltd & another [2024] QDC 157

PARTIES:

ELEM INVESTMENTS PTY LTD

(First Appellant)

And

LISA MILLER

(Second Appellant)

V

BLACKBIRD FINANCE PTY LTD ABN 39 625 408 684

(First Respondent)

And

STEWART WILKINSON

(Second Respondent)

FILE NO/S:

2029/24

DIVISION:

Appellate

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

16 August 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2024

JUDGE:

Porter DCJ KC

ORDER:

1. Leave be granted to the appellant to amend the Notice of Appeal subject to leave filed 24 July 2024 to add as an appellant Lisa Miller as the second appellant.
2. Leave be granted for either party to rely on such further evidence that was not before his Honour Magistrate McKenzie for the application for leave.
3. Leave be granted to Ms Miller to appear on behalf of Elem Investments Pty Ltd for the hearing today.
4. The application for leave to appeal be dismissed.
5. The application for an order for judgments by instalments be dismissed.
6. Elem Investments Pty Ltd and Lisa Miller pay the costs of the application for leave to appeal on a standard basis, fixed in the amount of $9000.00.
7. Elem Investments Pty Ltd pay the costs of the application for an instalment order fixed at $500.00.
8. It is directed that all other applications filed in the appeal be dismissed with no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – Procedure – Queensland – When appeal lies – From Magistrates Court – By leave of court – where the appellant is the judgment creditor of a default decision in QCAT – where two iterations of the default decision were registered in the Magistrate’s Court – where the respondents applied for, and were awarded, stays of both registered judgements – where the appellants filed a notice of appeal subject to leave appealing those stay orders -  where the appellant contends that those orders did not have the effect of staying the registered default decision – where the appellant contends that the application for the stay was not properly served – where the appellant contends that the application hearing for the stay should have been adjourned by the learned Magistrate – whether leave be given to the appellant to appeal the stay orders of the learned Magistrate

PROCEDURE – Civil proceedings in State and Territory courts – Judgments and orders – Generally – where an indemnity costs order fixed in the manner of $7,600 was made against the appellants, who were the respondents in stay application before the Magistrates Court – where the appellants now apply for judgment by instalments – whether the application for judgment by instalments should be granted

COUNSEL:

S. T. Lane appeared for the respondents

SOLICITORS:

I. Miller appeared in person for the appellants

Agility Law appeared for the respondents

Introduction

1. On 24 July 2024, Elem Investments Pty Ltd (Elem) and Ms Lisa Miller (Ms Miller was omitted initially in the Court headings for the applications, but that has been corrected as an oversight by leave in this hearing) filed two applications: one, a notice of appeal subject to leave, and the second, an application for an order for payment of a judgment by instalments.  Ms Miller, on her own behalf and on behalf of Elem, sought an urgent hearing date for those two applications. 

1. The urgency arose from some winding up proceedings, based on the assessed costs in the judgment the subject of the application for leave to appeal.  In response, the Court listed the application for leave to appeal and the application for a payment by instalments to be listed for hearing today.   

Background

1. The judgment the subject of the application for leave, was a decision by Magistrate McKenzie’s, given on 22 March 2024, by which his Honour ordered:

1. Pursuant to rule 800 of the Uniform Civil Procedure Rules 1999 (Qld) there is a stay of the enforcement of the judgement registered against Blackbird Finance Pty Ltd ABN 39 625 408 684 “Capital Finance” and Stewart Wilkinson on 30^th January 2024 and 14^th March 2024.

2.     The Plaintiff’s pay the Second Defendant’s cost of the Application fixed in the sum of $7,600.

1. That interlocutory order by his Honour arose in this way. It is accepted by all parties that on 8 January 2024, QCAT issued a “default decision” which was, in effect, a judgment by default in a minor civil dispute.  The default decision is short and is in this form[1]: 

   [1] Affidavit of L J Smouha Affirmed on 14 August 2024, page 21.

Case number:                  Q3600-23
Applicant:   Elem Investments Pty Ltd, Lisa Miller
Respondent:  Capital Finance, Stewart Wilkinson

Date:  8 January 2024
Initiating application:       Request for decision by default

Upon proof of:

·     Services of the application for minor civil dispute – minor debt on the respondent/s; and

·     The relief claimed remaining unpaid.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.     The respondent Capital Finance, Stewart Wilkinson pay to the applicant Elem Investments Pty Ltd, Lisa Miller the sum of $22,810.80 calculated as follows:

Claim amount  $22,016.57

Costs  $379.50

Interest  $415.30

Total  $22,810.80.

1. A judgment by QCAT in a minor civil dispute must be registered in the Magistrates Court to be enforced.  That default judgment was registered in the Magistrates Court on 10 January 2024. 

1. Before his Honour below, the respondents to this application had become aware of a further default decision of 12 March 2024.  That default decision was in the following form[2]: 

   [2] Affidavit of L J Smouha Affirmed on 14 August 2024, page 22.

Case number:                  Q3600-23
Applicant:   Elem Investments Pty Ltd, Lisa Miller
Respondent:  Blackbird Finance Pty Ltd and Stewart Wilkinson

Date:  12^th March 2024
Initiating application:       Request for decision by default

Upon proof of:

·     Services of the application for minor civil dispute – minor debt on the respondent/s; and

·     The relief claimed remaining unpaid.

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.     The respondent Capital Finance, Stewart Wilkinson pay to the applicant Elem Investments Pty Ltd, Lisa Miller the sum of $22,810.80 calculated as follows:

Claim amount  $22,016.57

Costs  $379.50

Interest  $415.30

Total  $22,810.80.

[Underlining added.]

1. That document is odd.  It is identical to the 8 January 2024 default judgment but changes the name of the respondent from “Capital Finance, Stewart Wilkinson” to “Blackbird Finance Pty Ltd and Stewart Wilkinson”.  What is odd about it is that the decision part of the judgment is unchanged from that contained in the 8 January judgment, so that, although the respondent has been changed, there is no judgment against Blackbird Finance Pty Ltd recorded in the decision: compare the two underlined sections above. It is mysterious.

1. In any event, the 12 March judgment was also registered on 14 March 2024 for the purposes of enforcement in the Magistrates Court. 

1. The material before his Honour demonstrated that the applicants had obtained a stay of the 8 January judgment on 10 January 2024.  On that date, Adjudicator Adcock ordered[3]:

1 The Application by the Respondents on 9 January 2024 to stay the default decision pending the outcome of an application to set aside is granted.

[3] Affidavit of Lisa Miller sworn on 22^nd July 2024, Exhibit H.  

1. The 8 January judgment was registered in the Magistrates Court on 10 January 2024, the same day as the stay in QCAT.  On 16 January 2024, as it turns out, the default decision on 8 January was set aside.  The respondents to the appeal filed an application in the Magistrates Court for the stay, initially of the January judgment.  When the respondents became aware of the existence of the March order, they sought a stay of enforcement before his Honour in respect of that judgment as well.

1. His Honour stayed the enforcement of both judgments.  His Honour also ordered indemnity costs against the applicants for leave to appeal and fixed them at $7,600.  There is no evidence of service of his Honour’s orders on the appellants until 3  July 2024, when they were served as part of a statutory demand under the Corporations Act 2001 (Cth) on Elem Investments Pty Ltd.

The notice of appeal subject to leave

1. The notice of appeal subject to leave was filed on 24 July 2024, well out of time.  However, it was brought fairly promptly following the service of the statutory demand. There is no evidence that the judgment below came to the attention of the applicants for leave before then so, notwithstanding the other difficulties of the application for leave, I think the delay is adequately explained in bringing the appeal.

1. The next, and probably the most compelling question on the application for leave to appeal, is the prospects of success of the appeal.  I gave directions for the conduct of this matter that were communicated by the registry.  It seemed to me, given the pending Corporations Act matters, I should at least deal with the application for leave as soon as possible.  There was a great deal of material filed on the application for leave, a lot of material that was not before his Honour.  Ultimately, I granted leave at large for all this material to be put before me.

1. The notice of appeal raised two grounds; although I think, to be fair to Ms Miller – who I granted leave to appear for Elem Investments Pty Ltd, as well as on her own behalf – she really had three grounds of appeal.

The effect of the 10 January 2024 order

1. The first ground of appeal is that the learned Magistrate was misled in respect of the effect of the order made on 10 January 2024.  Before his Honour, Mr Lane had submitted that order had the effect of staying the default decision which had been registered.  Ms Miller submitted on behalf of the applicants for leave that it did not have that effect.  In my respectful view it is unarguably clear that Mr Lane’s characterisation of that decision was correct.  His Honour was not in any way misled.  That appeal ground has no prospects of success.

Whether the application for the stay was properly served

1. The other two appeal grounds were related. 

1. The first related to service.  Ms Miller submitted that the material below had not been properly served on Elem Investments Pty Ltd or her. 

1. The affidavit of the respondents’ solicitor before his Honour dealing with service swears to service of the application and principal supporting affidavit on Elem Investments at its registered office.  That was not contradicted before his Honour or, more importantly, on this appeal.  Elem Investments was properly served.

1. The question of service on Ms Miller is another matter.  Now, it is correct, it seems under the rules, that an application to stay a judgment must be personally served on a judgment creditor.  It is not contended that the application and the principal supporting affidavit relied on before the learned Magistrate were personally served on Ms Miller.  Service was sought to be effected by posting the documents to various addresses associated with Ms Miller, and emailing them on 2 February 2024 to an email address that has been consistently used by Ms Miller.  I accept the documents were emailed as sworn to before his Honour.  There was no basis in any sworn material for me to question that.  That is not personal service.

1. However, Mr Smouha for the respondents to the application for leave swore, on 21 March 2024, that on 16 February, (a couple of weeks after the email referred to in the previous paragraph, a bit more than a week after the documents were delivered, at the least, to Elem Investment Pty Ltd’s registered office) he received a phone call from Ms Miller, during which conversation she said words to the effect she understood Mr Smouha acted for Stewart Wilkinson and Blackbird Finance Pty Ltd in respect of those Magistrates Court proceedings which were listed for hearing on 22 March 2024.[4]

   [4] See Mr Smouha’s affidavit filed in the Magistrates Court.

1. There was no evidence before me contradicting that evidence of that discussion.  And, in fact, it seemed to me that, in submissions, it was not cavilled with by Ms Miller. 

1. Mr Lane, who appeared for the respondents to the application for leave, submitted that his Honour was entitled to act on the basis that the matter had been served by informal service under rule 117 UCPR. His Honour did not make any specific observation to that effect. But I consider that service was established in that way on the evidence before him.

1. There is a further consideration in that regard, and that is that Ms Miller did actually appear on the date for the hearing and filed an affidavit in the registry in the Magistrates Court which, in fact, was drawn to his Honour’s attention at the hearing.  This is conduct consistent with someone aware that the application was proceeding. 

1. I do not find that his Honour’s decision was affected by error in proceeding to hear the application notwithstanding there was no evidence of personal service before him of the application and the supporting affidavit on Ms Miller.

Whether the application for the stay should have been adjourned

1. To be fair to Ms Miller, she raised, in effect, a further ground of appeal. That is that his Honour erred in not granting her an adjournment of the application.  That adjournment seems to have been sought based on medical issues.  An affidavit was filed the morning of the hearing by Ms Miller as I have already observed which raised medical issues said to prevent her appearing.  His Honour expressed scepticism about that issue in his reasons.  I do not see a proper basis in the record for that to have been unfair or not based on the material.  In any event, his Honour relied also on the fact that Ms Miller had been in the registry that morning.

1. On the material before his Honour, and given the urgent nature of a stay application, even bearing in mind the self-represented status of Ms Miller at the time, I am not persuaded that his Honour’s decision to proceed with the matter was affected by any error in the exercise of the discretion to proceed with the hearing.

1. A further factor in that regard is that, as I said, the application was a stay application, and no offer was made by Ms Miller to consent to a stay pending a properly argued stay application. That is a further consideration which justified his Honour’s approach of proceeding with the stay application.

1. I am not persuaded that his Honour’s discretion miscarried in refusing the adjournment, so this ground cannot justify granting an extension of time to appeal. 

Whether the extension of time to appeal be granted

1. For all those reasons, none of the grounds of appeal strike me as having sufficient prospects of success to justify the grant of an extension of time to appeal the decision.

1. There are other matters that support the conclusion that leave should be refused which have not been discussed in oral argument but are raised in Mr Lane’s outline.  One is that there is now no question that both the January judgment (which appears regular) and the March judgment (which strikes me as irregular), have been set aside (the January judgment) or are not pressed by Ms Miller as valid (the March judgment)  There is no point to reviewing the correctness of his Honour’s decision to stay judgments which are now no longer in existence (assuming that the March judgment was ever valid).  

1. In substance this is an appeal seems to be directed to overturning his Honour’s costs order.  The fact that it is an appeal going only to costs as a matter of substance, and a relatively small amount of costs at that, is another compelling factor as to why the leave should not be granted. 

1. An appeal going solely to costs requires leave, in any event.  There was no argument advanced that his Honour’s assessment had miscarried.  And, given the nature of the application, the material before his Honour, and the amount he awarded, experience suggests that such an argument would have little, if any, prospect of success.

1. I also note that his Honour, in fixing costs, went somewhat further than sometimes I require, by requiring evidence to be sworn up about costs.  I note that Judge Cash has said in the past that that should occur, but the discretion to fix costs is not confined in that way, and there will be circumstances where a judge – drawing on experience and knowledge of the nature of the matter and the likely costs, where a relatively small amount of costs are involved – can fix those costs without all the formality of sworn evidence.  It is a matter for the judge and dependant on the nature of the application. 

1. There is a couple of other matters to deal with.  I granted Ms Miller leave to appear for Elem Investments on these applications.  I mention that because a person other than a solicitor does not have a right to represent a company, even if they are the sole director and sole shareholder.  Ordinarily, leave requires financial evidence to be put before the Court to justify the company not appearing by a solicitor.  I did not think that was a matter to investigate on this occasion, because Ms Miller is a co-applicant on both applications.

The application for judgment by instalments

1. That leaves the application for the Court to make an order for judgment by instalments.  I have difficulty with the proposition that this Court has jurisdiction to make an order for payment by instalments in respect of a judgment of the Magistrates Court. 

1. Although she is self-represented, it was a matter for Ms Miller to persuade me of that proposition.  And she has not.  But, in any event, in case I do have power to do so, I wish to make clear that I would not have made an order for payment by instalments.

1. The first point to note is that the judgment creditor is opposed to such an order which is, absent anything else, a quite considerable reason for not making it.  The only evidence before me was Ms Miller’s evidence that property was to be sold for a large sum, and that the proceeds of some $5 million would be available.  That is, it appears, not strictly correct.

1. There is a mortgage, I am told from the bar table, of $1.2 million.  The registered proprietor now is not, indeed, Ms Miller or Elem Investments Pty Ltd.  It is a trustee who was appointed for execution purposes, it seems, in the Family Court. 

1. On being pressed, Ms Miller told me that that the sum to be recovered by the trustee might be a sum up to $1.5 million.  I asked Ms Miller what sum could be paid today.  And she told me the most that could be paid is $1000.  There is no evidence of sources of income or income streams for either her or Elem Investments Pty Ltd.

1. The onus lays on the applicants for the instalment order to demonstrate that the judgment creditor’s ordinary right to enforce a judgment in its terms should give way to a judgment by instalments.  The evidence did not establish that and, indeed, left me with the impression that an instalment order would not be complied with.

1. I therefore dismiss the application for judgment by instalments.

Conclusion

1. I dismiss the application for leave to appeal.  And the application for judgment by instalments.  I direct that all other applications filed in the appeal be dismissed, with no order as to costs.