Kilpatrick v Tighnabruaich Properties Pty Ltd - [2011] QCATA 208

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
Uniform Civil Procedure Rules r290

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…

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: [2011] QCATA 208
Decision Date: 9 August 2011

CaseChat Overview and Summary

In the case of Kilpatrick v Tighnabruaich Properties Pty Ltd, the applicant sought to challenge a decision made by default against them in a minor civil dispute. The application to set aside the decision by default was treated by the Member of the Civil and Administrative Tribunal as an application for leave to appeal. The applicant had filled out Form 3, providing both company and personal details for themselves and the respondent. The primary legal issue before the court was whether the grounds for leave to appeal were met by the applicant. Specifically, the court needed to determine whether the applicant had demonstrated a serious question to be tried and whether there were other compelling reasons to grant the application.

The court considered the application under the Civil and Administrative Tribunal Act 2013, focusing on whether the applicant had established a serious question to be tried and identified other compelling reasons to grant leave to appeal. The court noted that the applicant's failure to strictly follow the procedural requirements, such as filling in both company and personal details on Form 3, was a significant factor in its decision. The court held that the applicant had not met the threshold for leave to appeal, as the procedural errors were not trivial and there was no compelling reason to excuse the non-compliance. The application to set aside the decision by default was dismissed.

The court's decision highlights the importance of strict adherence to procedural requirements when applying for leave to appeal in the Civil and Administrative Tribunal. The court emphasised that failure to comply with procedural rules can be a significant factor in determining whether the grounds for leave to appeal have been met. The applicant's application was dismissed, and no leave to appeal was granted. The decision underscores the need for careful preparation and attention to detail when submitting applications to the Tribunal.

Orders