Han v Gomez

[2018] QCATA 76

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Han v Gomez [2018] QCATA 76

PARTIES:

SHENG PING HAN
(applicant/appellant)

v

DANIEL OSCAR GOMEZ
(respondent)

APPLICATION NO/S:

APL123-17

ORIGINATING APPLICATION NO/S:

MCDO52456-16 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

23 May 2018

HEARING DATE:

11 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

1.   Leave to appeal is granted.

2.   The Appeal is upheld.

3.   The Tribunal’s decision of 20 March 2017 is set aside.

4.   The Tribunal’s decision of 11 January 2017 is set aside.

5.   The Application filed on 21 October 2016 is transferred to the Magistrates Court of Queensland at Southport.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – leave to appeal – minor civil dispute – where application for recovery of a debt – where respondent failed to file response –where decision by default granted – where application to set aside application for decision by default refused – where appeal grounds that application not in respect of recovery of debt or any other type of minor civil dispute – whether Tribunal has jurisdiction in respect of original application – whether application may be transferred to Magistrates Court

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 50, s 50A, s 51, s 52, s 131, s 142, s 146, schedule 3 Dictionary

McGarry v Coates [2013] QCATA 32
Ogdens Ltd v Weinberg (1906) 95 LT 567

APPEARANCES & REPRESENTATION:

Applicant:

Mr Radcliffe of Counsel, instructed by Cooper Maloy Legal

Respondent:

Self-represented

REASONS FOR DECISION

1. Mr Han was the respondent in a minor civil dispute involving a claim for payment of an amount for damage alleged to have been caused by him to Mr Gomez’s motor vehicle. Mr Han did not file a response to the application and Mr Gomez obtained a decision by default on 11 January 2017 with costs and interest totalling $3,702.25.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 50.

2. Mr Han then filed an application to have the decision by default set aside.[2] The application to set aside the decision by default was refused on 20 March 2017 and Mr Han has now appealed that decision.

   [2]QCAT Act, s 51.

3. As the application was in the Tribunal’s Minor Civil Dispute jurisdiction, a grant of leave to appeal by the Appeal Tribunal is required before the appeal can proceed.[3]

   [3]QCAT Act, s 142(3).

4. Leave to appeal will ordinarily only be granted where: there is some question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is whether leave is necessary to correct a substantial injustice to the applicant, caused by some error.

5. It is submitted, on behalf of Mr Han, that leave to appeal should be granted because the basis of the…