Gilford v G Developments Pty Ltd
[2012] QCAT 235
•13 June 2012
| CITATION: | Gilford v G Developments Pty Ltd [2012] QCAT 235 |
| PARTIES: | Luke Gilford |
| v | |
| G Developments Pty Ltd |
| APPLICATION NUMBER: | BDL169-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 13 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to set aside the tribunal’s decision of 3 October 2011 is dismissed. 2. The application for an extension of time in which to file a response is dismissed. |
| CATCHWORDS: | BUILDING DISPUTE – DEFAULT DECISION – where application to set aside decision by default – where doubt about service – where delay in brining application to set aside Queensland Civil and Administrative Tribunal Act 2009, ss 3, 45 Podmejersky v Cullens [2012] QCATA 17 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The tribunal made final orders in this proceeding on 3 October 2011 in default of a response from G Developments Pty Ltd. G Developments has applied to set aside that decision and for an extension of time in which to file a response.
Section 51 of the Queensland Civil and Administrative Tribunal Act2009 gives the tribunal power to set aside a decision entered in default of an appearance. As Senior Member Oliver has observed[1]:
The setting aside of a default decision is discretionary. The usual principles are that the applicant must establish a good defence on the merits, and also have a satisfactory explanation for delay. If the judgment is irregularly entered that is, there is a flaw in the process such as, defective service or the claim is not truly a debt or liquidated demand, then the default decision must be set aside.
[1] Podmejersky v Cullens [2012] QCATA 17 at [11].
Every document that the tribunal sent to the nominated address for G Developments was returned marked “insufficient address”. G Developments has explained that there is no letterbox for the street address so Australia Post will not deliver documents to the street address. If material is to be posted to G Developments, then, it says, the post office box is the appropriate address.
The affidavit of service Mr Gilford filed on 15 July 2011 does not disclose the method of service. Given subsequent events, the tribunal cannot be sure that the method of service was effective in bringing this claim to the attention of G Developments. That is a flaw in the process referred to by Senior Member Oliver which would, ordinarily, result in the default decision being set aside.
However, it is still for me to exercise my discretion.
The tribunal received a telephone call from G Developments’ lawyer on 30 November 2011, advising that his client had not been aware that there were any proceedings against it until it received the report from the Queensland Building Services Authority. The tribunal forwarded copies of the application, schedule of defective work, decision and reasons to G Developments by email the same day. Later that day, the tribunal received an email from G Developments stating that “We have our solicitor handling the appeal.”
The QBSA report, and the learned Member’s decision, required G Developments to rectify work within four weeks of receipt of the report. The time limit for G Developments to complete the work expired some time in early January 2012. G Developments did not comply with the tribunal’s order to rectify the defects.
On 15 May 2012, the tribunal rang G Developments and left a message. The tribunal received the subject applications on 21 May 2012.
If G Developments had been filing an appeal against the tribunal’s decision, the application had to be filed within 28 days of receipt of the reasons for decision. Therefore, the latest date on which an appeal could have been filed is early in January 2012. Even though s 51 is silent about the time in which an application to set aside a default decision may be filed, unless there are exceptional (and explained) circumstances, I can see no good reason why the time frames should be more favourable for this application than an application to appeal.
[10] It is troubling that no application was filed until over five months after G Developments received a copy of the decision. G Developments has not explained that delay.
[11] The tribunal has a mandate[2] to:
“deal with matters in a way that is accessible, fair, just, economical, informal and quick”.
[2] Section 3(b) Queensland Civil and Administrative Tribunal Act 2009.
[12] The parties to a proceeding:
… must act quickly in any dealing relevant to the proceeding.[3]
[3] Section 45 Queensland Civil and Administrative Tribunal Act 2009.
[13] G Developments has not fulfilled its obligation to the tribunal to act quickly. Granting the application at this late stage will not allow the tribunal to fulfil its obligations under the Act. I therefore decline to exercise my discretion in this, limited, circumstance.
[14] The application to set aside the decision of 3 October 2011 is dismissed. It follows that the application for an extension of time in which to file a response is also dismissed.
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