Faraji v Daniels - [2023] QCATA 147

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Faraji v Daniels [2023] QCATA 147

PARTIES:

FARSHAD FARAJI

(applicant/appellant)

v

MARK DANIELS

(respondent)

APPLICATION NO/S:

APL222-22

ORIGINATING APPLICATION NO/S:

MCDO28-22 Cleveland

MATTER TYPE:

Appeals

DELIVERED ON:

9 November 2023

HEARING DATE:

4 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     Leave to appeal granted.

2.     Appeal Allowed.

3.     The default decision made 2 June 2022 is set aside.

4.     The matter is returned to the building list to be determined according to law and dealt with as an expedited building dispute.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where a default decision was obtained in a minor civil dispute proceeding – where the respondent applied to set it aside – where the application to set aside was dismissed by an adjudicator – whether the adjudicator erred in refusing the application to set aside default decision – where the adjudicator did not address most of the usual factors to be considered in such applications – whether the respondent had grounds of appeal arising under the Human Rights Act2019 (Qld) – where the appeal was allowed and the matter referred back to the tribunal as a building dispute rather than as a minor civil dispute

Human Rights Act2019 (Qld), s 9(4), s 15, s 31, s 58

Cusack v De Angelis [2007] QCA 313

Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151
Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49
Parr v Queensland Police Service [2021] QCA 216
Pickering v McArthur [2005] QCA 294

PJB v Melbourne Health [2011] VSC 327

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Mr Daniels operated a garage door and gate business. Mr Faraji is a building contractor. Mr Daniels quoted to supply and install a garage door at certain premises for Mr Faraji.
Mr Faraji accepted Mr Daniel’s quotation and arranged a time at the premises for the work to be done. Mr Daniels’ workers attended but claimed there was no one else on site and they found an obstruction blocking the doorway of the garage. Mr Daniels claimed his workers were prevented from installing the garage door.
Mr Daniels claimed payment for the supply and installation of the door.
The parties fell out over the matter and Mr Faraji refused to pay. Mr Daniels filed an application for minor civil dispute – minor debt in the tribunal on 9 March 2022.
Mr Faraji was personally served with the application on 11 April 2022.
Given the application was a claim for recovery of a minor debt, by the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), Mr Faraji was obliged to file a response to the application in the tribunal and give Mr Daniels a copy of the response within 28 days of service of the application on Mr Faraji.
Mr Faraji did not do that and on 27 May 2022 Mr Daniels applied to the Registry for a decision by default.…

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.

Continue reading Faraji v Daniels

Details

AGLC: Schatz v Kamalanathan [2023] QCATA 147
Case: [2023] QCATA 147
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the case of Faraji v Daniels, the applicant sought to challenge a default decision obtained by the respondent in a minor civil dispute proceeding. The decision was made on 2 June 2022. The applicant applied to set aside the default decision, but the respondent's application was dismissed by an adjudicator. The applicant then appealed to the court, contending that the adjudicator had erred in refusing to set aside the default decision. Additionally, the applicant argued that the adjudicator failed to address most of the usual factors to be considered in such applications. The applicant also submitted that there were grounds for appeal arising under the Human Rights Act 2019 (Qld). The court found that the appeal was meritorious and allowed it, setting aside the default decision. The matter was then returned to the tribunal to be determined as an expedited building dispute.

The primary legal issue before the court was whether the adjudicator erred in dismissing the application to set aside the default decision. The court considered the arguments presented by the applicant regarding the adjudicator's failure to address most of the usual factors to be considered in such applications. The court found that the adjudicator had indeed overlooked these crucial factors, which warranted the setting aside of the default decision. Furthermore, the court examined the applicant's claim that there were grounds for appeal arising under the Human Rights Act 2019 (Qld) and determined that this claim was valid. Consequently, the court allowed the appeal and set aside the default decision.

The court's reasoning was grounded in the principles of procedural fairness and the correct application of the law. The court noted that the adjudicator had not adequately considered the usual factors to be taken into account when deciding an application to set aside a default decision. This oversight was deemed significant enough to warrant the setting aside of the default decision. Additionally, the court found merit in the applicant's argument that there were grounds for appeal arising under the Human Rights Act 2019 (Qld), which further supported the decision to allow the appeal and set aside the default decision. The court's decision was based on a thorough examination of the adjudicator's reasoning and the application of the relevant legal principles.

The final orders of the court were as follows: leave to appeal was granted; the appeal was allowed; the default decision made on 2 June 2022 was set aside; and the matter was returned to the building list to be determined according to law and dealt with as an expedited building dispute. This decision ensures that the applicant's procedural fairness rights are upheld and that the matter is properly classified and addressed in the tribunal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal Allowed.

3. The default decision made 2 June 2022 is set aside.

4. The matter is returned to the building list to be determined according to law and dealt with as an expedited building dispute.

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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