Kitchen v Lloyd

[2010] QCATA 102

CITATION: Kitchen  v Lloyd  [2010] QCATA 102

PARTIES:	Andrew Mark Kitchen  (Applicant/Appellant)
v
Nathan Jon Lloyd (Respondent)

APPLICATION NUMBER:            APL186-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   9 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal is refused

CATCHWORDS : 

MINOR DEBT CLAIM – DECISION BY DEFAULT – LEAVE TO APPEAL – where respondent granted decision by default – where appellant did not seek to set aside the decision but rather sought leave to appeal – whether any error in granting decision by default – whether appellant has satisfied the usual tests for leave – whether the appellant raises any grounds to have the decision set aside

Queensland Civil and Administrative Tribunal Act 2009, ss 50, 51, 137, 142(3)

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Lloyd brought proceedings in QCAT’s Minor Civil Disputes jurisdiction against Mr Kitchen, claiming some costs associated with mobile telephone services. As QCAT’s application form 3 warns the respondent, a failure to file and serve a response within 28 days means the applicant can apply for a decision by default. That is what occurred here: Mr Kitchen did not file a response, and Mr Lloyd obtained a decision by default against him on 13 August 2010 in the sum of $1,391.76 for claim, and $90.00 for costs.

1. Mr Kitchen seeks leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009, s 142(3). In Mr Kitchen’s application for leave to appeal (in QCAT form 39) he names Nattec Communications Pty Ltd as the respondent to the appeal but it was Mr Lloyd, trading as Nattec Communications, which obtained the default judgment against him and he is the correct respondent.

1. In his application Mr Kitchen says that he did not owe money to Mr Lloyd but, rather, to Nattec Communications Pty Ltd, trading as Nattec Connect. He also alleges that he was not properly served with all documents and did not receive the ‘full evidence brief’; and, that he has some new evidence.

1. He has provided quite a large bundle of papers, the meaning of which is unclear. The dispute between him and Nattec Connect seems quite complicated. Nothing in Mr Kitchen’s material suggests, however, that any error was made by the Registrar who awarded Mr Lloyd the default decision.

1. The existence of that decision makes it difficult to understand the purpose of Mr Kitchen’s appeal, or find any basis upon which it could succeed. Under the QCAT Act and Rules Mr Kitchen was required to respond to the application within a stipulated period: QCAT Rule 43. He did not do so. In that circumstance the applicant for relief, Mr Lloyd, was entitled to apply for a decision by default: QCAT Act, s 50.

1. If Mr Kitchen had any concern or complaint about that default decision, he could have applied under s 51 of the QCAT Act to have it set aside. QCAT has as a wide discretion to set aside default judgements in any circumstances which it ‘…considers appropriate’. Mr Kitchen has made no attempt to show how, or why, this default judgement should be set aside.

1. That is not the end of the relief he might have considered seeking under the legislation. Under s 138 of the QCAT Act a party can apply for a proceeding to be reopened if it can show, for example, that it did not appear at a hearing and had a reasonable excuse for not attending. That will not directly apply in the case of a decision by default which is awarded because of a failure to file a response but it might, conceivably, have been used by Mr Kitchen if, for example, his failure to respond occurred in circumstances for which he had ‘…a reasonable excuse’.

1. It is appropriate to observe that, notwithstanding the extensive material Mr Kitchen has filed in support of his appeal, nothing in it is persuasive that he had a good defence to the original claim or that the events which have occurred have obviously resulted in some injustice to him.

1. His application for leave to appeal must be refused.