Houghton and Houghton v Taylor and Taylor
[2017] QCAT 421
•5 October 2017
CITATION: | Houghton and Houghton v Taylor and Taylor [2017] QCAT 421 |
PARTIES: | Kenneth Frederick Houghton and Ronda Ann Houghton |
| v | |
| Clinton James Taylor and Belinda Jane Taylor (Respondents) | |
APPLICATION NUMBER: | MCDO139-17 |
MATTER TYPE: | Minor civil dispute – Application to set aside decision by default |
HEARING DATE: | 5 October 2017 |
HEARD AT: | Townsville |
DECISION OF: | Susan Warrington, Acting Magistrate |
DELIVERED ON: | 5 October 2017 |
DELIVERED AT: | Townsville (on the papers) |
ORDERS MADE: | Default decision entered on 24 July 2017 is set aside. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – whether tribunal should set aside decision by default under s 51 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where Respondent has provided satisfactory explanation for lack of response to application within statutory timeframe |
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
On 30 May 2017 the respondents filed a minor debt application seeking payment from the respondent in the amount of $1,200.00 plus costs.
On 20 July 2017 the respondents filed a request for decision by default along with an affidavit of service stating that the applicants were served with the minor debt application on 21 June 2017 by Brisbane bailiff, Kenneth William Jacobi.
On 19 July 2017 the applicant, Kenneth Houghton, sent an email to the QCAT enquiries email address in the Brisbane QCAT registry stating “In regards to case file no Q139/17 between myself and BJ Tayler, I will be responding to her claim in due course, as I am waiting for the person that was in charge of the clean up on my behalf to finish his submission to me on the facts of his clean up. He has not been available due to being away. My response will be lodged by 27 July 2017. Thanks Ken Houghton”
On 24 July 2017 a delegate for the Principal Registrar, QCAT, in Townsville, determined the request for decision on the papers and entered judgement by default against both applicants in the amount of $1,200.00 plus costs of $206.60 and interest of $65.83. Total judgement $1,472.43.
At the time of entering judgement, the delegate in Townsville had not been provided with a copy of Mr Houghton’s email that was sent to the Brisbane QCAT registry on 19 July 2017.
On 25 July 2017 the email sent by Mr Houghton to the Brisbane QCAT registry was forwarded to the Townsville QCAT registry.
On 26 July 2017 an officer from the Townsville QCAT registry sent an email to the applicant, Mr Ken Houghton, notifying him that a decision by default had been made on 24 July 2017.
On 2 August 2017 the applicants filed an application to set aside the default decision on the grounds they had notified the QCAT registry on 19 July 2017 of their intention to respond to the claim by 27 July 2017.
On 3 August 2017, an adjudicator made orders that the application to set aside the default decision would be made on the papers without an oral hearing. The adjudicator made directions that the applicants, Houghton and Houghton, were to file and serve any written submissions in respect of the application by 4pm on 21 August 2017 and a further direction that, the respondents, Taylor and Taylor were to file and serve any written submission in respect of the application by 4pm on 4 September 2017.
The applicants, Houghton and Houghton, filed no further submissions and relied upon the application filed on 2 August 2017.
On 24 August 2017, the respondents, Taylor and Taylor, sent an email to the Townsville QCAT registry making submissions that the default decision made on 24 July 2017 be enforced on the grounds that the respondents failed to make any written submissions in accordance with the directions made on 3 August 2017. The dispute had been lodged on the 28 July 2017. On 5 August 2017 the applicants sent an email to the respondents requesting they complete the statement of positions within 14 days which they failed to do. The respondents breached or ignored the original contract to the purchase the property and failed to complete Magistrates Court Statement of Financial Position form.
A response to the application was filed by the applicants in the Toowoomba QCAT registry on 18 August 2017. The response was then forwarded to the Townsville QCAT registry by post and received on 29 August 2017.
The Tribunal has discretionary power to set aside a default decision pursuant to section 51 of the QCAT Act if satisfied it is appropriate. I am satisfied that the applicants have provided a satisfactory explanation for failing to file a response to the application within the statutory timeframe allowed before a request for decision by default can be made. I find it would be a denial of natural justice for the applicants to be prevented from defending the claim on the grounds the applicant notified the Tribunal of their intention to defend the claim prior to the default decision being entered. This notification failed to reach the decision maker due to an administrative delay and therefore could not be given appropriate consideration at the time the default decision was made.
I therefore grant the application and order the default decision entered on 24 July 2017 be set aside. The application is listed for hearing on 2 November 2017 at 11:30am.
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