McIvor v Tucker

[2013] QCATA 54

CITATION: McIvor v Tucker & anor [2013] QCATA 54

PARTIES:	Mr Mark McIvor (Applicant/Appellant)
V
Mr David Robert Tucker Mr Richard Terrick Cowan (Respondents)

APPLICATION NUMBER: APL321 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where settlement agreement – where agreement allowed tribunal to make an order if default – where default – where order made - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s85(5)

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

1. Messrs Tucker and Cowen trade as Tucker & Cowen Solicitors. The firm did legal work for MM Holdings Pty Ltd and MM Capital Pty Ltd. Mr McIvor is a director of both companies.

2. Neither company paid Tucker & Cowen for its work so the firm applied to the tribunal for orders that it be paid. Sensibly, the parties resolved their dispute at mediation. The mediation agreement records that Mr McIvor would be personally liable for the debts and that, if there was a default under the agreement, the parties could apply to the tribunal for orders giving effect to the settlement. The agreement expressly provided that those orders could include an order that Mr McIvor be added as a party to the action. Mr McIvor signed the settlement agreement.

3. Mr McIvor defaulted. Tucker & Cowen applied for orders giving effect to the agreement and the tribunal made those orders. Mr McIvor wants to appeal those orders. He says that “judgment” was improperly entered. He says that Tucker & Cowen did not serve the “order” joining him and that he was entitled to be heard on the application to join. He says that he filed a defence and that he is entitled to a proper hearing on the merits.

1. Because this is an appeal from a minor civil dispute, Mr McIvor must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr McIvor shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.  

1. Mr McIvor lost his right to a substantive hearing when he signed the settlement agreement. Whatever complaints he had about Tucker & Cowen’s work are no longer relevant in this dispute.

1. Tucker & Cowen applied for an order in accordance with the terms of the agreement. If signed written terms of a settlement are filed in the registry, the tribunal may make orders necessary to give effect to those terms[1]. That is what happened. The tribunal is not required to give the other party notice, presumably, because the defaulting party knew the terms of the agreement, what would happen if it defaulted and, of course, whether or not it did default.

   [1]            Queensland Civil and Administrative Tribunal Act 2009 s85(5)

1. Mr McIvor does not deny that he defaulted. There is no reason why the tribunal should make a different order.

1. 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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.