Meads v Platt

[2012] QCAT 216

CITATION: Meads v Platt [2012] QCAT 216

PARTIES:	Allan Meads t/as Townsville Cabinetmaking & Joinery (Applicant/Appellant)
v
Nikki Platt (Respondent)

APPLICATION NUMBER:   BDL329-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Alex Crawford, Member

DELIVERED ON: 29 May 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The Application by the Respondent to set aside the Default Decision of the Tribunal of 28 February 2012 be dismissed.

2.    The Application by the Respondent for an extension of time be dismissed.

3.    No order as to costs.

CATCHWORDS: 

Default decision

Queensland Civil and Administrative Tribunal Act2009, s 100

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. In this matter a Default Decision was given by QCAT on 28 February 2012 in favour of Mr Allan Meads t/as Townsville Cabinetmaking & Joinery (the Applicant) for the claim, filing fee, costs and interest in the sum of $13,121.67 against Ms Nikki Platt (the Respondent).

2. The Respondent has applied to QCAT for orders for:

1.Any extension of time necessary to allow her to apply to set aside the Default Decision; and

2.The setting aside of the Default Decision.

1. Both parties have provided written submissions regarding the applications which the Tribunal has read.

2. The Tribunal notes that the Respondent says she never received any notice of the Applicant’s Application for Domestic Building Dispute until she received a copy of the Default Decision from QCAT around 7 March 2012.

3. On the other hand the Applicant refers to an Affidavit of Service by Ian Robert Kennedy, Bailiff, sworn 20 December 2011, which says relevantly that he served the Respondent with the Application for Domestic Building Dispute on 19 December 2012 by delivering the same to Ty Wetherill, an adult person living at the Respondent’s last known place of residence at 17 Miles Avenue, Kelso, Townsville Qld who responded to the Bailiff’s request was he able to accept service of the Application on the Respondent’s behalf by saying “yes I’ll take it and give it to her, she is out at the moment”.  (See QCAT Practice Directions No 8 2009, service of documents (Amended 11 February 2011), which describes how service is effected on an individual).

4. The Tribunal prefers and accepts the sworn Affidavit of Mr Kennedy regarding service to the Submissions to the Respondent, as the service of a sworn affidavit by a Bailiff of the Court has more weight than the unsworn written submissions of the Respondent.  In other words the Tribunal finds the Respondent knew about the Application but failed to take appropriate action in response to it before the Default Decision was given.  Further there is no sworn evidence from Ty Wetherill saying that he never received the relevant paperwork.

5. Further, the Tribunal accepts that as the Applicant has registered the Default Decision and obtained Judgement in the Magistrates Court (on 5 April 2012) and on 8 May 2012 has applied for and been granted an Enforcement Warrant for the Seizure and Sale of the Respondent’s property.  Accordingly the Applicant submits the proceedings are no longer within the jurisdiction of QCAT.  The Tribunal accepts that submission.  However the Tribunal still has to make orders regarding the applications.

6. The Tribunal also prefers and accepts the balance of the Applicant’s submissions (except the submissions as to costs) rather than the submissions of the Respondent on the basis that the Applicant’s submissions are more persuasive than the Respondent’s submissions, eg: in paragraphs 15 and 17 of the Applicant’s submissions it is noted that the Applicant’s solicitors on two occasions wrote to the Respondent with regards to this matter and received no reply from the Respondent which the Tribunal considers may well indicate a lack of interest in the matter by the Respondent.

7. The Applicant has made submissions that the Tribunal should order the Respondent to pay the Applicant’s costs on an indemnity basis.

[10]  Having read the submissions of the Applicant regarding costs, the Tribunal is not persuaded that such an order should be made.

[11] The Tribunal considers that pursuant to section 100 of QCAT Act each party must bear its own costs and the Tribunal should not exercise its broad discretionary power otherwise.

[12]  Accordingly, in the light of the above, the Tribunal makes the following orders:

1.The Application by the Respondent to set aside the Default Decision of the Tribunal of 28 February 2012 be dismissed.

2.The Application by the Respondent for an extension of time be dismissed.

3.No order as to costs.