Leonov v Kislyakova - [2012] QCATA 171

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
Queensland Civil and Administrative Tribunal Act 2009, ss 11, 20, 32, 50, 51, 142(3)(a)(i), 210
Queensland Civil and Administrative Tribunal Rules 2009, r 48

Fox v Percy (2003) 214 CLR 118
Drew v Bundaberg Regional Council [2011] QCA 359
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Jones v McCoist [2011] QCATA 212

Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
O'Loughlin v Vintage Aeroplane Services [2010] QCATA 103
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Revamp Plus Pty Ltd v Superior Marble and Granite Pty Ltd [2011] QCATA 134
Secure Investing Pty Ltd v Rees [2012] QCATA 28

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.…

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.

Continue reading Leonov v Kislyakova

Details

AGLC: Leonov v Kislyakova [2012] QCATA 171
Case: [2012] QCATA 171
Decision Date: 12 September 2012

CaseChat Overview and Summary

Leonov v Kislyakova involved a dispute over a minor debt claim where the Tribunal had awarded a default judgment against the appellant. The appellant claimed he was not served with the application for the debt claim, whereas the respondent provided evidence of personal service. The appellant subsequently applied to set aside the default judgment, which was dismissed by the Tribunal. The appellant sought leave to appeal from this decision.

The central legal issue was whether there was an error of fact or law by the Tribunal that warranted an appeal. The appellant argued that the Tribunal's dismissal of his application to set aside the default judgment was flawed due to the alleged lack of service. The respondent contended that the evidence of service was sufficient and that the Tribunal correctly exercised its discretion in denying the appellant's application.

The court considered the grounds for leave to appeal and whether any errors made by the Tribunal warranted an appeal. It assessed the evidence of service and the Tribunal's reasoning in dismissing the application. Ultimately, the court found that the Tribunal did not make an error of fact or law in dismissing the application to set aside the default judgment. The evidence of service was deemed sufficient, and the Tribunal's exercise of discretion was not shown to be flawed. Consequently, the court refused the appellant's application for leave to appeal.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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