Jade Financial Pty Ltd v Siaea - [2019] QCAT 22

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Jade Financial Pty Ltd v Siaea [2019] QCAT 22

PARTIES:
JADE FINANCIAL PTY LTD

(applicant)

v

ROSEMARY SIAEA

(respondent)

APPLICATION NO/S: MCDO 50016 of 2018

MATTER TYPE: Other minor civil dispute matters

DELIVERED ON: 14 January 2019 ex tempore

HEARING DATE: 14 January 2019

HEARD AT: Beenleigh

DECISION OF: Adjudicator Alan Walsh

ORDERS: The Application is dismissed.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL – where New Zealand creditor purportedly assigned New Zealand credit contract to Applicant – where credit contract regulated by New Zealand Statute – where Respondent debtor moved to Australia – where Applicant an Australian corporation – where no Response filed to minor debt claim – where Applicant requested default judgement – where request refused – where matter ordered to hearing – where Respondent did not attend hearing – where Australian director of Applicant ordered to attend the hearing in person – where he failed to attend – where evidence he knew nothing about the assignment –– where New Zealand director did not attend hearing either – where no affidavit evidence of directors filed – where New Zealand resident manager filed affidavit – where he attended hearing by telephone with leave – where manager authorised by New Zealand director to represent Applicant and sign documents on its behalf

EVIDENCE – PROOF – STANDARD OF PROOF –

GENERALLY – where issues of jurisdiction and exercise of jurisdiction arose – whether Applicant discharged onus of proof resting with it – whether right to recover debt of New Zealand resident validly assigned to Applicant – whether credit contract and general terms and conditions proved – whether New Zealand Law applying to credit

contract proved – whether minor debt liability of Respondent established – whether credit contract interest rate clause a penalty or enforceable – whether contract permitted recovery of debt in Australian dollars – whether Applicant assignee acquired any greater contractual rights than assignor had – whether claim within Tribunal jurisdiction – whether Tribunal should exercise jurisdiction in circumstances

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 13, s 14, s 28, s 29, s 32, s 50, s 57, s

62, s 90, s 93, s 95, s 97, s 126, s 127
Queensland Civil and Administrative Tribunal Rules
2009 (Qld) r 54(1), r 54(4), r 54(5)(b)

Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299

Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost [2015] QCAT 463

APPEARANCES & REPRESENTATION:

Applicant: Scott Martins by telephone

Respondent:

No appearance

REASONS FOR DECISION

On the 12th of September 2018 I refused a request for default decision by the Applicant against the Respondent. I had ordered that the application filed the 16th of January 2018, that is, the minor debt application, be listed for hearing at Beenleigh on notice to the parties; that, in terms of order 3, the Applicant file with the Tribunal and serve on the Respondent…

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.

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Details

Case: [2019] QCAT 22
Decision Date: 14 January 2019 ex tempore

CaseChat Overview and Summary

In the matter of Jade Financial Pty Ltd v Siaea, the dispute arose when Jade Financial, an Australian corporation, claimed a debt from Siaea, a New Zealand resident who had moved to Australia. The crux of the case was whether Jade Financial, as the purported assignee of a New Zealand credit contract, had validly acquired the right to pursue the debt in Australia. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT). Jade Financial had sought a default judgment against Siaea after no response was filed to the minor debt claim. However, the Tribunal refused the request for default judgment and ordered a hearing. Siaea did not attend the hearing, and the Australian director of Jade Financial, who was ordered to attend in person, also failed to appear. The New Zealand director and resident manager did not attend either, although the manager was permitted to participate by telephone. The manager filed an affidavit on behalf of the Applicant, stating that he was authorised by the New Zealand director to represent the Applicant and sign documents on its behalf.

The legal issues before the Tribunal included whether Jade Financial had discharged the onus of proof, whether the New Zealand credit contract had been validly assigned to them, and whether the QCAT had jurisdiction to hear the matter. Additionally, the Tribunal had to determine whether New Zealand law applied to the credit contract and whether the interest rate clause in the contract constituted a penalty. Other issues included whether the credit contract permitted the recovery of the debt in Australian dollars, whether Jade Financial had acquired any greater contractual rights than the original assignor, and whether the claim fell within the jurisdiction of the QCAT.

The Tribunal found that Jade Financial had not discharged the onus of proof. The evidence presented did not convincingly establish the validity of the assignment or the terms of the credit contract. Furthermore, the Tribunal was not satisfied that New Zealand law applied to the credit contract. The interest rate clause was found to be a penalty, making it unenforceable. The Tribunal also concluded that the claim was not within its jurisdiction, and even if it were, the Tribunal should not exercise its jurisdiction in the given circumstances.

The Tribunal dismissed the Application, finding that Jade Financial had not proven its case on the balance of probabilities. The Tribunal held that the credit contract, the terms of the assignment, and the application of New Zealand law were not adequately substantiated. Consequently, Jade Financial was not entitled to recover the debt from Siaea.

Orders

Orders of the court

The Application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jade Financial Pty Ltd v Siaea [2019] QCAT 22
PARTIES:	JADE FINANCIAL PTY LTD (applicant)
v
ROSEMARY SIAEA (respondent)
APPLICATION NO/S:	MCDO 50016 of 2018
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	14 January 2019 ex tempore
HEARING DATE:	14 January 2019
HEARD AT:	Beenleigh
DECISION OF:	Adjudicator Alan Walsh
ORDERS:	The Application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where New Zealand creditor purportedly assigned New Zealand credit contract to Applicant – where credit contract regulated by New Zealand Statute – where Respondent debtor moved to Australia – where Applicant an Australian corporation – where no Response filed to minor debt claim – where Applicant requested default judgement – where request refused – where matter ordered to hearing – where Respondent did not attend hearing – where Australian director of Applicant ordered to attend the hearing in person – where he failed to attend – where evidence he knew nothing about the assignment –– where New Zealand director did not attend hearing either – where no affidavit evidence of directors filed – where New Zealand resident manager filed affidavit – where he attended hearing by telephone with leave – where manager authorised by New Zealand director to represent Applicant and sign documents on its behalf EVIDENCE – PROOF – STANDARD OF PROOF – GENERALLY – where issues of jurisdiction and exercise of jurisdiction arose – whether Applicant discharged onus of proof resting with it – whether right to recover debt of New Zealand resident validly assigned to Applicant – whether credit contract and general terms and conditions proved – whether New Zealand Law applying to credit

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 13, s 14, s 28, s 29, s 32, s 50, s 57, s 62, s 90, s 93, s 95, s 97, s 126, s 127 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 54(1), r 54(4), r 54(5)(b) Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299 Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost [2015] QCAT 463
APPEARANCES & REPRESENTATION:
Applicant:	Scott Martins by telephone
Respondent:	No appearance