KBK Industries Australia Pty Ltd v Griffiths

[2024] QCATA 29

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

KBK Industries Australia Pty Ltd v Griffiths [2024] QCATA 29

PARTIES:

KBK INDUSTRIES PTY LTD 

(applicant)

v

STEPHEN GRIFFITHS

(respondent)

APPLICATION NO/S:

APL366-23

ORIGINATING APPLICATION NO/S:

MCDQ0030/23 (Caloundra)

MATTER TYPE:

Appeals

DELIVERED ON:

7 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application for leave to appeal or appeal is dismissed, pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), on the basis that it is futile/lacks utility.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES-  where application for a minor civil dispute minor debt given a default judgment in the absence of a response having been filed by respondent company – where application to set aside default judgment was dismissed – where the respondent company was deregistered before bringing the application to set aside – where the respondent company seeks leave to appeal and to appeal the decision to dismiss the application to set aside – where a deregistered company has no standing to sue – where the application for leave to appeal lacks utility

Corporations Act 2001 (Cth) s 601AA, s 601AD

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 47

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. KBK Industries Pty Ltd (‘KBK’) purports to apply for leave to appeal, and to appeal, a decision made on 22 September 2023 refusing to set aside a default judgment given against it on 25 July 2023. Difficulty being, KBK was deregistered under section 601AA(4) of the Corporations Act 2001 (Cth) (‘Corporations Act’) on 26 July 2023 and the effect of deregistration is that “a company ceases to exist”.[1] 

   [1]Corporations Act, s601AD.

2. On 14 February 2024 the Appeal Tribunal invited submissions from the parties as to whether the application for leave to appeal or appeal should be dismissed as lacking utility, with a decision on that point to be made on the papers.

3. I have decided to dismiss the application for leave to appeal or appeal because:

(a)The application relates to the minor civil dispute – minor debt claim by Mr Griffiths against KBK filed 19 May 2023.

(b)A decision was made in favour of Mr Griffiths in default of KBK filling a response, with an order made 25 July 2023 that KBK pay Mr Griffiths the sum of $18,064.45.

(c)As mentioned, KBK was deregistered under section 601AA(4) of the Corporations Act on 26 July 2023.

(d)Section 601AD of the Corporations Act expressly states that the effect of deregistration is that “a company ceases to exist”. Accordingly, it cannot sue, or be sued, or take any step in a proceeding from that date.

(e)KBK brought its application to set aside the default decision after deregistration.

(f)As KBK remains deregistered with no submission that it is to be reinstated under section 601AD(3)(a) of the Corporations Act:

(i)      KBK had no standing to bring the application for leave to appeal or appeal filed 13 October 2023 and it should be dismissed on that basis, and in any event,

(ii)      KBK had no standing to bring the application to set aside the default decision and, therefore, the Tribunal below was correct to dismiss it.

1. Section 47 of the QCAT Act permits the tribunal to dismiss a proceeding if it considers a proceeding to be frivolous, vexatious, or misconceived, lacking in substance or an abuse of process. Where KBK lacks standing to sue there is no utility in permitting its application for leave to appeal or appeal to proceed.

2. Consistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,[2] the decision of the Appeal Tribunal is to dismiss the application for leave to appeal or appeal pursuant to section 47 of the QCAT Act, on the basis that it is futile/lacks utility.

   [2]QCAT Act, s3.