Kilpatrick v Tighnabruaich Properties Pty Ltd
[2011] QCATA 208
•9 August 2011
| CITATION: | Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 |
| PARTIES: | Mr Tyron Kirkpatrick |
| v | |
| Tighnabruaich Properties Pty Ltd trading as Sink and Bathroom Shop |
APPLICATION NUMBER: APL152-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 9 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal granted.
2.Appeal allowed.
3.Decision of 17 December 2010 set aside.
4.The decision of 16 August 2010 is set aside and the following decision substituted:
The respondent Hillside Living Pty Ltd ABN 86115422252 pay Tighnabruaich Properties Pty Ltd trading as Sink and Bathroom Shop ABN 89083294080 the sum of $12,070.50. a.
Leave to add Tyron Kilpatrick as a respondent to the proceeding. b.
That Tyron Kilpatrick file and serve a response to the application in the minor civil dispute proceeding by 16 September 2011.c.
The proceeding be listed for hearing at Holland Park Magistrates Court.d.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where decision by default – where application to set aside decision by default – where Member treated application as an application for leave to appeal – where applicant completed Form 3 by filling in both the company and personal details for the applicant and respondent – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 43, 50 and 51 Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 |
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
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft.
The application before the learned Member was an application to set aside a default decision. It is not clear why he chose to treat the application as an appeal but in doing so, it is apparent he applied the wrong test. This is an obvious error of law and therefore leave to appeal should be granted. As such in the circumstances it is appropriate that the Appeal Tribunal decide the appeal by substituting it’s own decision[1]. I therefore agree with Ms Stilgoe’s reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
[1] QCAT Act, section 146.
Sink and Bathroom Shop supplied products to Hillside Living Pty Ltd. Hillside did not pay its bill so Sink and Bathroom Shop issued proceedings in the minor civil dispute jurisdiction of the tribunal. In a common misunderstanding, Sink and Bathroom Shop nominated the respondent as Mr Kilpatrick and Hillside Living. Neither party filed a response so, on 16 August 2010, the registry entered a decision by default against both Mr Kilpatrick and Hillside.
Mr Kilpatrick filed an application to set aside the decision against him pursuant to section 51 of the Queensland Civil and Administrative Tribunal Act 2009. The learned Adjudicator treated the application as an application for leave to appeal and refused the application.
Mr Kilpatrick has appealed the learned Adjudicator’s decision on these grounds:
a) The learned Adjudicator, in treating the application as an application for leave to appeal, applied the wrong test.
b) Mr Kilpatrick has a satisfactory explanation for his failure to respond to the application and an arguable defence.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. 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: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Section 51 of the Act specifically refers to an application to set aside a decision by default. It is not the same thing as an application for leave to appeal.
The test to be applied in considering whether to set aside a decision obtained by default has been set out by the President:[2]
a) Section 51 is in very similar terms to Rule 290 of the Uniform Civil Procedure Rules 1999.
b) Decisions on r 290 show that, among the factors relevant to the discretion arising under it are whether or not there is a good reason for the respondent’s failure to file a response; any delay in bringing the application; the respondent’s conduct in the proceedings before and after judgment; the respondent’s good faith; whether the respondent has raised a defence on the merits; and whether the applicant would be severely prejudiced if the judgment was set aside, in a way which could not be adequately compensated by, say, costs.
c) The discretion arising under s 50 of the QCAT Act and, in particular, in the Minor Civil Disputes jurisdiction may, arguably, involve a slightly different approach because of the emphasis, in the QCAT Act, on requirements that the Tribunal act quickly, and with as little formality and technicality as is consistent with a fair and proper consideration of the issues before it.[3]
[2] Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 at [11]–[14].
[3] QCAT Act, ss 3, 4 and 28.
It is apparent that the learned Member did apply the wrong test when he treated Mr Kilpatrick‘s application as an application for leave to appeal. The Appeal Tribunal must, therefore, consider whether he has a reasonable prospect of substantive relief.
Mr Kilpatrick says that the reason he did not file a response is that he thought the debt was owed by Hillside and the application directed to the company. An examination of the application shows that is a reasonable assumption. The details inserted into Part C refers to “the respondent”. The invoices annexed to the application are all made out to Hillside. Mr Kilpatrick’s name does not appear anywhere except in Part A.
The application Form 3 may be confusing in that an applicant is not asked to complete either the name of an individual respondent or the company name. That confusion is not assisted by the instructions in the application checklist[4]:
“If the debt dispute relates to a business or company, have you provided the business or company name and not just the name of an individual?”
[4] type="1">
The same problem applies to the applicant’s details. The invoices are issued by Tighnabruaich Properties Pty Ltd trading as Sink and Bathroom Shop. Mr Sinclair should not be named as a party.
If Sink and Bathroom Shop was asserting a right of action against Mr Kilpatrick personally, then the application should have revealed the basis for that. As it did not do so, I find that Mr Kilpatrick’s assumption that the proceeding applied only to Hillside was reasonable.
Mr Kilpatrick says that Hillside was placed in liquidation in October 2010. He infers that there was no point in filing a response for a company that was clearly insolvent.
Mr Kilpatrick explains the delay in bringing the application to set aside the decision by default. He is a pilot, working a roster of 28 days where he is overseas for 6 days at a time. He also instructed his lawyers to seek clarification of whether the decision was against him personally. Sink and Bathroom Shop confirmed that it was by letter received 5 November 2010. Mr Kilpatrick filed his application within 28 days of that date.
There is nothing in Mr Kilpatrick’s conduct before or after the decision which I consider has a bearing on the exercise of the tribunal’s discretion.
Mr Kilpatrick has raised a defence on the merits. He says it was a company debt and he did not sign a director’s guarantee. Sink and Bathroom Shop now rely on a promise to pay but the effect of that promise has not been the subject of submissions from Mr Kilpatrick nor has it been tested by the tribunal.
The requirement of the tribunal to act quickly and with as little formality as possible is always subject to the requirement that it act in the interests of justice. While the Appeal Tribunal has some sympathy for Sink and Bathroom Shop, any prejudice that it may suffer by having the decision set aside can be addressed by a decision on costs or interest.
Sink and Bathroom Shop says that, because leave has not been granted pursuant to s 43 of the Act, Mr Kilpatrick cannot make this application through his lawyers. Although s 43 has, as its purpose, that parties represent themselves unless the interests of justice otherwise require it, nothing in the Act prevents a party from having a lawyer assist in the preparation of material. Mr Kilpatrick’s use of a lawyer is not a ground to refuse leave to appeal.
The learned Member was in error and Mr Kilpatrick has a reasonably arguable case. Leave to appeal should be granted, the appeal allowed and the decision of 17 December 2010 set aside.
For the purposes of clarity I propose to order that Mr Kilpatrick be added as a party.
The decision of 16 August 2010 should also be set aside and the following decision substituted:
a) The respondent Hillside Living Pty Ltd ABN 86115422252 pay Tighnabruaich Properties Pty Ltd trading as Sink and Bathroom Shop ABN 89083294080 the sum of $12,070.50.
b) Leave to add Tyron Kilpatrick as a respondent to the proceeding.
c) That Tyron Kilpatrick file and serve a response to the application in the minor civil dispute proceeding by 16 September 2011.
d) The proceeding be listed for hearing at the Holland Park Magistrates Court.
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