McKenzie trading as Total Haulage Tipper Hire v Packer trading as BPT, BP Transport and PRW Logistics
[2013] QCAT 646
| CITATION: | McKenzie trading as Total Haulage Tipper Hire v Packer trading as BPT, BP Transport and PRW Logistics & Anor [2013] QCAT 646 |
| PARTIES: | Mrs Pauline Margaret McKenzie trading as Total Haulage Tipper Hire (Applicant) |
| v | |
| Mr Nicholas Packer trading as BPT, BP Transport and PRW Logistics (First Respondent) Mrs Rebecca Packer trading as BPT, BP Transport and PRW Logistics (Second Respondent) |
| APPLICATION NUMBER: | MCDO34/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 3 September 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 3 September 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. THAT the Respondents Application for Miscellaneous matters filed on 20 August 2013 to set aside the default order is refused. |
| CATCHWORDS: | Application to Set Aside Default Decision – where no explanation for failure to file a response – where no prima facie or arguable defence provided – where no explanation provided for delay in filing application to set aside default decision Queensland Civil and Administrative Tribunal Act 2009 Evans v Bartlam [1937] AC 473 Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52 |
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
The issues
Mrs Pauline McKenzie of Total Haulage Tipper Hire filed an application for minor civil dispute minor debt on 15 January 2013 claiming that Nicholas and Rebecca Packer trading as BP Transport and PRW Logistics pay to them the sum of $10,969.74 for services provided by the Applicant to the Respondents including haulage and tipper hire services with invoices provided for those services which the respondent refused to pay.
The services and invoices relate to periods between May 2012 and September 2012.
On 6 March 2013, the applicant requested that a decision be made by default for the full amount of the claim together with costs and interest as a response had not been served and the amount had not been paid. The request was accompanied by a supporting affidavit.
On 6 March 2013, the Delegate of the Principal Registrar of the Tribunal at Southport made a decision by default that the respondent pay to the applicant the amount of $11,883.75, being the amount claimed plus interest of $559.01 and costs.
On 20 August 2013 the respondent filed an Application to set aside or amend a default decision made on 6 March 2013. The respondent’s does not allege that the debt is not owed but that merely the amount is incorrect. The respondents state in the application that ‘the applicant’s figures on her paperwork do not match those on ours’. They state further that ‘we have researched our files and found our figures do not match those of Total Haulage Tipper Hire… we have been through all paperwork and there is a difference in figures’. The respondents attached to their application a summary of alleged work done, price of work, dates work performed and alleged amounts paid to the respondents. The Respondents did not file a Response.
The respondent was directed to serve his application to set aside the default decision on the applicant and to file and serve any statements and submissions in support of it. The applicant was directed to file and serve its statements and submissions in response and the application to set aside the default decision was then to be heard on the papers after 1 September 2013.
Relevant Considerations
Under section 51 of the QCAT Act the tribunal can set aside or amend a decision by default on terms as the tribunal considers appropriate. The section does not make specific provision about when the discretion to set aside may be exercised.
Courts have considered the discretion to set aside a default decision is unconditional, although they have established principles to guide the exercise of the discretion.[1] When the judgment has been regularly obtained, the applicant must generally demonstrate a prima facie defence, although courts may have regard to other matters such as an explanation about why judgment by default occurred[2] and any delay in making the application.[3]
[1] Evans v Bartlam [1937] AC 473, 480 (per Lord Aitken); 481-482 (per Lord Killowen).
[2] Evans v Bartlam [1937] AC 473, 480 (per Lord Aitken); 481-482 (per Lord Killowen).
[3] Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] 1 Qd R 142.
The Uniform Civil Procedure Rules 1999 (Qld) provide a similarly wide discretion to set aside or amend a default judgment. The Queensland Court of Appeal has considered the broad discretionary power it provides.[4] In recent times, courts have placed considerable significance on whether the applicant is able to demonstrate an arguable defence, considering this the most cogent matter of the three matters identified above.[5]
[4] Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52.
[5] Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52.
Rule 44 of the Queensland Civil and Administrative Rules 2009 (QCAT Rules) provides for responses to prescribed applications, including a minor civil dispute, to be filed within 28 days of service.
The Applicants response to the Respondents Submissions
Total Haulage Tipper Hire raise the fact that BP Transport and PRW Logistics do not dispute the fact that monies are owed only that the amount is incorrect.
Total Haulage identifies the fact that BP Transport and PRW Logistics have not provided any explanation as to their failure to file a response within the prescribed time.
Findings
The default decision was regularly obtained. The QCAT Rules provide for 28 days for the filing of a response in respect of applications relating to a minor civil dispute. The respondent’s did not file a response within this time frame. The respondent did not provide any explanation as to why they did not file a response after being served with a copy of the claim.
The default decision was made on 6 March 2013. The respondents did not make the application to set aside that order until 20 August 2013, some five months after the default order was made. The respondents did not make their application promptly to set it aside. The respondents did not provide any explanation as to why there was a delay to bring the set aside application.
The respondent’s have not filed a Response and do not dispute there may be monies owed by them to the applicant, the respondents merely suggest the default decision should be set aside due to the amount being incorrect.
On this application, I am required to turn my mind to whether to exercise the discretion to set aside the default decision. In my view, the respondent has not raised a prima facie defence, namely that they are not indebted to the applicant. The respondents have not explained the delay in filing of the application nor the failure to file a response. Further, the respondents were slow in making this application to set aside the default decision and did not provide any reason for the delay.
As already considered, the decision by default was regularly entered. A default judgment which has been regularly obtained in the circumstances arising will only, usually, be set aside if the respondents can advance some good reason for failing to file a defence. As the respondents have not met this test, and their defence is weak, arguing that they disagree with the amount owing, I consider there is no basis for finding that this application has merit.
In the circumstances, I am satisfied that it is not appropriate to exercise my discretion to set aside the default decision. I therefore refuse to do so and make the following order accordingly.
Order
1. THAT the Respondents Application for Miscellaneous matters filed on 20 August 2013 to set aside the default order is refused.
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