Leonov v Kislyakova
[2012] QCATA 171
•12 September 2012
| CITATION: | Leonov v Kislyakova [2012] QCATA 171 |
| PARTIES: | Vladimir Leonov |
| v | |
| Irina Kislyakova |
| APPLICATION NUMBER: | APL429-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J Forbes, Member |
| DELIVERED ON: | 12 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR DEBT CLAIM – DEFAULT JUDGMENT – where the Tribunal made a default judgment awarding a minor debt claim against the appellant – where the appellant alleges he was not served with the application – where there is evidence of personal service – where the appellant made an application to have the default judgment set aside – where the application was dismissed –whether there is an appellable error of fact or law – whether leave to appeal should be granted Property Law Act 1974, Pt 19 Fox v Percy (2003) 214 CLR 118 Jones v McCoist [2011] QCATA 212 Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This is an application for leave to appeal from a refusal to set aside a judgment entered in default of response. In several cases[1] parties have confused the appeal procedure with a simpler remedy offered by the Act,[2] but, as that remedy has already been tried in this case, an application for leave to appeal[3] is appropriate.
[1]See eg Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208; Secure Investing Pty Ltd v Rees [2012] QCATA 28 at [11]; O'Loughlin v Vintage Aeroplane Services [2010] QCATA 103 at [6]; Revamp Plus Pty Ltd v Superior Marble and Granite Pty Ltd [2011] QCATA 134.
[2]Queensland Civil and Administrative Tribunal Act 2009, s 51 (setting aside decision by default).
[3] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
The real question, then, is whether the application, correct in form, is good in substance. For the reasons following, I find it to be devoid of merit.
The Appellant Leonov has filed several applications for leave. I shall treat the application filed on 4 November 2011 as a sufficient statement of his position. The grounds of appeal are these:
I was never served with the claim. The Applicant made no effort to inform [me] of the pending legal action. I did not receive notification of the court decision. I have a complete defence to the claim. The Applicant and myself had a personal relationship that failed prior to the action. I wish to have the matter reheard.
No particulars of the “complete defence” are given.
A further application was filed by the Appellant on 28 September 2011, repeating the denial of due service and adding that “the Applicant has performed in a manner to cause personal hardship to myself”.
The Appellant’s reference to a “personal relationship” is open to the interpretation that the Respondent/Applicant Kislayakova’s claim for monies owing is a financial matter between de facto partners, contemplated by Pt 19 of the Property Law Act 1974 (and hence without the jurisdiction of this Tribunal), although there is no explicit plea to that effect. However, in the absence of any evidence that the substantive claim is of that kind, I shall treat it as a minor civil dispute.[4] The incidental fact of a de facto relationship – if indeed there was one here – does not deprive this Tribunal of jurisdiction to deal with a claim in debt.[5]
[4]For the unpaid price of certain furniture, agency commissions, and a contribution to an air fare to enable the Appellant to attend a trade fair in Moscow: Application for minor civil dispute – minor debt filed 15 June 2011.
[5]Queensland Civil and Administrative Tribunal Act 2009, s 11; Jones v McCoist [2011] QCATA 212.
I turn now to the Appellant’s repeated claims that he received no notice of the proceedings. The solicitors for Kislayakova sent him an email letter of demand for part of the claim on 5 April 2011. In response, the Appellant telephoned them on the same day, denying liability and stating that he would be “very happy to take the matter to court”. That evidence is unchallenged.
Kislayakova’s application was filed on 15 June 2011. A process server, Ross Williams, in an affidavit filed on 14 August 2011, swears that he served the application upon the Appellant personally, on 17 June 2011. Williams deposes that he identified the Appellant by asking him: “Are you Vladimir Leonov, the person referred to in these documents?”, whereupon the person who accepted the documents appeared to read them and replied: “I am”.
The document thus served (Form 3) “contains the following prominent and salutary warning”[6]:
Warning to Respondent/s You must respond to this application within twenty eight (28) days after you are given a copy of the application. Otherwise, the applicant may apply to the tribunal for a decision by default against you.
[6]As identified by the Tribunal in Revamp Plus Pty Ltd v Superior Marble and Granite Pty Ltd [2011] QCATA 134.
On 14 August 2011, two months after service of the Form 3 and in the absence of a Response, Kislayakova’s solicitors applied for judgment by default.[7] On that day the registrar at Southport, as delegate of the Principal Registrar[8], had before him Williams’ then-uncontradicted affidavit of service, and an affidavit of debt sworn and filed on that day by the solicitor for the claimant. On that material the registrar lawfully entered default judgment for Kislayakova in the amount of $13,839.32, comprising $12,622.31 for debt, $354 for costs, and interest calculated as $863.01.
[7] Queensland Civil and Administrative Tribunal Act 2009, s 50.
[8] As to delegation, see Queensland Civil and Administrative Tribunal Act 2009, s 210.
By letter dated 20 August 2011, annexing a copy of the default judgment, Kislayakova’s solicitors notified the Appellant of that decision. On 28 August 2011 the Appellant filed an affidavit alleging for the first time that he had had no notice of the proceedings until that letter arrived.
On 6 October 2011 Adjudicator Fraser dismissed the Appellant’s application to set aside the default judgment. In so doing, the Adjudicator implicitly accepted Ross Williams’ evidence of personal service, and rejected the Appellant’s denial, as she was entitled to do.
An application for a stay of the default judgment was refused on 8 December 2011.
Before leave to appeal is given it must appear that the decision in question is affected, arguably at least, by an error resulting in a substantial injustice[9], or that the appeal raises a question of general importance[10]. Those requirements are not satisfied here. It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to that of witness “B”. It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done. Findings of fact will not be disturbed if, as here, they have rational support in the evidence.[11] Leave is not to be given where a party simply desires to re-argue the case; one clear purpose of a “leave” requirement is to preclude a retrial on the merits.[12]
[9]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
[10]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[11] Fox v Percy (2003) 214 CLR 118 at 125-126.
[12]Contrast Queensland Civil and Administrative Tribunal Act 2009, s 20 (review jurisdiction).
I can find no error of law or fact, either in the decision to enter a decision by default, or in the Adjudicator’s decision to dismiss the application to set aside that decision aside.
Leave to appeal is refused.
The Appellant asserts that he has a claim against the Respondent/Applicant Kislayakova. If so, separate proceedings would be necessary; cross-claims are not permitted in cases of this kind.[13]
[13] Queensland Civil and Administrative Tribunal Rules 2009, r 48.
ORDER
Leave to appeal is refused.
0
8
0