Liu v Sternberg
[2013] QCATA 166
•13 June 2013
| CITATION: | Liu v Sternberg [2013] QCATA 166 |
| PARTIES: | Lian You Liu (Applicant/Appellant) |
| V | |
| Milor Sternberg (Respondent) |
| APPLICATION NUMBER: | APL041 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 13 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where decision in default of response – where order for substituted service – where respondent alleges no service – where application to set aside default decision refused – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Liu and Mr Sternberg own adjoining properties. Mr Sternberg had a Colorbond fence built on the boundary. He says that Mr Liu agreed to share the cost of the fence so he filed a claim for half the cost from Mr Liu. On 21 December 2011, in default of a response from Mr Liu, the tribunal ordered that Mr Liu pay Mr Sternberg $1,823.15.
On 3 December 2012, almost a year later, Mr Liu applied to reopen the proceeding. The tribunal refused his application.
Mr Liu wants to appeal that decision. He says that he did not understand the tribunal proceeding until Mr Sternberg took enforcement proceedings in the Magistrates Court and Mr Liu then had an interpreter to help him. He says that he had no opportunity to present his case. He disputes some of the facts in Mr Sternberg’s claim. He says that he was not served with the proceeding.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Mr Sternberg had trouble serving Mr Liu. The tribunal granted an extension of time for service several times. Eventually, Mr Sternberg applied for substituted service. The tribunal ordered that service be effected by forwarding a copy of the claim to Mr Liu’s address and affixing a copy of the claim to the front door of Mr Liu’s address. The tribunal verified Mr Liu’s address by reference to a bailiff’s report, ASIC documents and a QVA report. Mr Sternberg served Mr Liu in accordance with the order and filed an affidavit of service. Mr Liu’s submission that he did not receive a copy of the claim is simply not credible.
Once I accept that Mr Liu did receive a copy of the claim, he bears the obligation to act on it. If he did not understand the claim, he should have asked for assistance then, and not waited until Mr Sternberg took enforcement proceedings.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Sternberg provided independent evidence of Mr Liu’s agreement to a Colorbond fence. The tribunal was entitled to accept that agreement and make an order that reflected it. The fact that Mr Liu might be able to source a cheaper timber fence is irrelevant.
Mr Liu has not pointed to any error in the tribunal’s decision. There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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