Lenivale Pty Ltd v Maree Pty Ltd

[2011] QCATA 306

CITATION: Lenivale Pty Ltd v Maree Pty Ltd [2011] QCATA 306

PARTIES:	Lenivale Pty Ltd (Applicant/Appellant)
v
Maree Pty Ltd t/as Plumbing Control (Respondent)

APPLICATION NUMBER: APL288-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 8 November 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – where refusal to set a decision by default – where applicant unable to establish a defence on the merits

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The named applicant Lenivale Pty Ltd was formerly the Ryan Group Queensland Pty Ltd.  Lenivale and Ryan Group have the same ACN 053 307 805.  A notification of change of name was lodged with the Australian Securities and Investment Commission on 11 March 2010.  Despite that change of name, the company still corresponded under the letterhead of Ryan Group Queensland Pty Ltd. 

1. On 31 May 2010 the Ryan Group asked Plumbing Control to quote on undertaking certain plumbing work at a location on Gympie Road at Strathpine.  Plumbing Control responded to that facsimile request soon after and provided a cost for the job.

1. The work was subsequently carried out and Plumbing Control rendered an invoice for $8,316.00.  Ryan Group did not pay the invoice.  Plumbing Control then filed an application in the Tribunal’s minor civil disputes jurisdiction on 12 August 2010 seeking recovery of the invoiced amount. 

1. Lenivale failed to file a response to the minor civil dispute proceeding and a decision by default was entered against it.  It then applied to have the decision by default set aside.  The application to set aside the decision by default was considered by a Tribunal Adjudicator on 20 May 2010.  In the reasons provided, the learned Adjudicator rightly found that Ryan Group Queensland Pty Ltd was one in the same as Lenivale Pty Ltd and that the contract for the supply of the plumbing work was between Maree Pty Ltd and Lenivale Pty Ltd.

1. Although an invoice was issued in the name of Poolmere Pty Ltd Mr Holmes, a Director of Maree filed an affidavit saying that the invoice was issued to Poolmere by mistake.  The learned Adjudicator was entitled to accept that evidence.

1. In determining the true parties to the contract, the name on the invoice might be of assistance, but when there is correspondence passing between the parties which provides evidence of the contract, the invoice issued subsequent to the performance of the contract is of little assistance.  In any event the learned Adjudicator refused to set aside the default decision.

1. On 11 August 2011 Lenivale filed an application for leave to appeal or appeal in the Tribunal.  Leave to appeal is necessary.[1]  The grounds of appeal are that Lenivale was not a registered trading entity and nor did it request the alleged works.  The grounds go on to contend that the quoted works were carried out for Poolmere Pty Ltd which is the owner of the property at which the works were undertaken.  Annexed to the application for leave to appeal is a copy of the invoice to Poolmere which, Mr Holmes says, was addressed to Poolmere by mistake. 

[1] QCAT Act section 142(3).

1. 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?

1. The error of law contended for by Lenivale is that the facts demonstrate that the contract was between Plumbing Control and Poolmere rather than Plumbing Control and Lenivale or the Ryan Group.  The learned Adjudicator carefully considered not only the evidence of Mr Holmes, but the documents relied on to support the contract having been entered into between the Ryan Group and Plumbing Control in coming to his decision.

[10]  The general principles to setting aside a default decision are firstly there must sufficient explanation for the delay in filing the response to the originating proceeding.  Secondly, the applicant must establish that it has a defence on the merits.  Here there is no explanation, but it seems that is of little consequence.  The application to set aside the default decision was made in a timely fashion. 

[11]  In respect of a defence on the merits the applicant has a difficulty.  Lenivale contends that the contracting party was Poolmere and not Ryan Group or Lenivale.  That contention is against the weight of the evidence and has little prospects of success if the matter were to proceed to a hearing.  It is therefore reasonable to conclude, as the learned Adjudicator did, that there is no defence on the merits.

[12]  Lenivale has been unable to identify any error on the part of the learned Adjudicator which would warrant interference by the Appeal Tribunal and warrant leave to appeal. 

[13]  As no error has been identified, nor is any apparent, quite the contrary, leave to appeal is refused.