Mr David Lawrence v Empire Roofing (Qld) Pty Ltd
[2011] QCAT 116
•5 April 2011
| CITATION: | Lawrence v Empire Roofing (Qld) Pty Ltd [2011] QCAT 116 |
| PARTIES: | Mr David Lawrence |
| v | |
| Empire Roofing (Qld) Pty Ltd |
| APPLICATION NUMBER: | REO010-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 23 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Anne Forbes, Member |
| DELIVERED ON: | 5 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application to reopen the decision of 5 September 2009 is dismissed. |
| CATCHWORDS: | Application to reopen a proceeding – decision by default in former Commercial and Consumer Tribunal – applicant relies on reopening ground of reasonable excuse for not attending hearing – claimed not served with notice –issues of credit decided in favour of respondent – application dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138, 252, 276 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr David Lawrence |
| RESPONDENT: | Empire Roofing (Qld) Pty Ltd represented by Chris Philp |
REASONS FOR DECISION
Empire Roofing Pty Ltd (“Empire”) was the Applicant in a claim (“the CCT application”) against David Lawrence (“Lawrence”) in the former Commercial and Consumer Tribunal (“the CCT”) for a liquidated debt for the supply and fitting of roofing material. On 15 September 2009 a member of that tribunal made a decision by default in favour of Empire in the sum of $6,036.30.
Lawrence, in an application filed on 6 July 2010 in this tribunal now seeks to have the matter reopened and an extension of time for filing the application. A senior member directed the parties on 10 November to file and serve written submissions and both parties have done so.
The tribunal considered the submissions and finding a marked dispute as to credit between the parties formed the opinion that a hearing is appropriate. Accordingly Mr Lawrence and Mr and Mrs Philp, directors of Empire attended a brief hearing on 23 March 2011.
Applicant’s Submissions
Lawrence’s submissions summarised are as follows:
- He claims to have received no notice of any proceeding or hearing;
- He has not been served with any documents requiring him to attend a hearing;
- Consequently he has had no opportunity to defend the claim;
- The first notice of the default judgement he received was in June 2010 when Empire registered the judgement in the Magistrates Court and Lawrence received a copy;
- Empire’s notice of service is defective under section 37 of the Queensland Civil and Administrative Act 2009 (“the Act”);
- He has a good defence to the original claim for debt in the form of a counterclaim against Empire for defective work.
Respondent’s Submissions
Empire submits through a commercial agent, Ms Grey of Safeguard Collection Services (“Safeguard”):
- In March 2009 Lawrence advised an officer of Safeguard that he had made arrangements for payment of the debt and has not disputed it until these proceedings;
- Safeguard served a copy of the application by post addressed to Lawrence at his residence in accordance with section 41 of the CCT Act 2003 and section 39 of the Acts Interpretation Act 1954;
- Lawrence was aware of the pending proceeding and ongoing attempts to recover the debt;
- Safeguard posted the CCT default judgement to Lawrence at his confirmed address on 21 October 2009 and in a subsequent phone conversation Lawrence stated that he would attend to it;
- Empire entered judgement in the Magistrates Court on 8 January 2010 and Safeguard sent a notice to Lawrence that day to advise him of the pending enforcement hearing. The summons was personally served on Lawrence;
- The enforcement hearing was held on 24 May 2010 but Lawrence did not attend;
- On 26 May 2010 Safeguard sent a notice to Lawrence advising him that a warrant would shortly be issued ;
- On 16 June 2010 Safeguard telephoned Lawrence who referred them to his solicitors. When contacted the solicitors said they had no instructions to act;
- The Applicant made no complaint to the Queensland Building Service Authority until October 2010, 18 months after the work was performed and raised no concerns with Empire prior to this date.
Evidence for the Applicant
Mr Lawrence has sworn an affidavit on 24 November 2010, stating his address as 3 Monterey Court, Broadbeach Waters. He says that in February or March 2009 Empire, at his request, carried out roofing repairs to his mother’s house and that Empire later performed repairs to prevent leaking. In June 2009 Empire requested payment but Lawrence said leaks were still evident and that he would discuss payment with his mother. Lawrence admits that Safeguard contacted him about payment in September 2009. Lawrence claims that he first discovered in June 2010 that judgement had been entered against him. He maintains that prior to this date he had received no documents supporting Empire’s claim nor any affidavit proving service. He obtained quotes for the alleged defective workmanship which exceed the judgement debt and he has a good counterclaim. It is noted that the quotations were obtained some 18 months after the allege defective work, namely October and November 2010.
Mr Lawrence gave brief oral evidence under oath in response to questions from the tribunal. He confirmed that he has lived for the past seven years at the Monterey Court address, that he receives mail at that address, and he could offer no reason why notice of the CCT claim should not have been delivered to him there. In turn, each of the occasions of service of documents by Safeguard were put to him; he denied, or claimed not to remember, receiving any.
Evidence for the Respondent
Empire’s submissions are supported by affidavits of Christopher Stuart Philp the director of the Respondent, Kathryn Constable, and statements and an affidavit of Margaret Gray. Philp says that his company completed the works in March 2009. When asked by Philp on more than one occasion for payment on the progressive invoices and reminder invoices tendered by Philp, Lawrence raised no concerns about the quality or completion of the works, and in fact promised to attend to payment. When payment was not forthcoming Empire engaged Safeguard in April/May 2009. Philp made a further urgent personal request for payment in June 2009. Lawrence excused his non-payment by referring to a medical condition and again promising to finalise payment. Empire filed a claim in the CCT on 6 August 2009 and on 15 September 2010 the tribunal made the decision by default.
Ms Kathryn Constable, an employee of Safeguard deposes to the following efforts to obtain payment of the debt to Empire:
Safeguard sent a letter of demand to the applicant addressed to 3 Monterey Court Broadbeach Waters on 29 June 2009. Safeguard had confirmed the address as that of Lawrence. He did not respond. On 10 July 2009 Safeguard spoke to Lawrence on his mobile phone. He stated that he had been in hospital in a diabetic coma for 3 weeks but that he had arranged with Empire to pay the debt. The debt had not been paid by 6 August 2009 so Safeguard lodged an application in the CCT for payment in a domestic building dispute annexing all the invoices for progress claims accepted by Lawrence. The application was served by post to the Monterey Court address on 16 August 2009. No defence was entered by Lawrence. On 15 September 2009 Mr Schefe, a director of the CCT, on the evidence of an affidavit of service and an affidavit of debt, and noting that no defence had been filed, made an order by default in favour of Empire. The order was registered in the Magistrates Court at Southport and judgement issued on 8 December 2009. Safeguard forwarded a letter and a copy of the judgement to Lawrence on 8 January 2010 advising him that the judgement was proceeding to an enforcement hearing. Safeguard attempted without success to contact Lawrence a month later on his mobile phone. Notice of the enforcement hearing set down for 24 May 2010 was personally served on Lawrence at his home address on 8 May 2010. Three further attempts to contact Lawrence by mobile phone were unsuccessful. He did not attend the hearing and a warrant issued. Currently the enforcement hearing stands adjourned pending the determination of this application.
[10] The original CCT file BD369-09 contains an Affidavit of Service of Documents of Margaret Gray sworn 17 August 2009 and filed 19 August 2009. Ms Gray deposes to serving a sealed copy of the Application on the Respondent Mr Lawrence by posting it to him at 3 Monterey Court Broadbeach Waters 4218 on 17 August 2009. The Application contains the clear warning to Lawrence that if a defence is not filed within 14 days of service the Applicant can apply for a default decision.
[11] A process server, Rodney Thistlethwaite deposes to having served Lawrence personally at the Broadbeach address with the Enforcement hearing order and other documents on 8 May 2010.
Legislation
[12] A reopening application is governed by sections 252, 276, and 137, and 138 of the QCAT Act and section 92 of the QCAT Rules. In combination these provide that:
· a final decision of a former tribunal (in this case the CCT) is taken to be a final decision of QCAT; and
· if the decision could have been appealed under the CCT when QCAT commenced on 1 December 2009 it becomes a reviewable decision in QCAT; and
· the Applicant must offer a ground for reopening, namely, that (a) he “did not appear at the hearing of the proceeding and had a reasonable excuse for not attending; or (b)…would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided”; and
· the application must be made within 28 days of the date of the original decision, or 28 days of its receipt by the Applicant.
[13] The original decision was made on 15 September 2009. The present application was not filed until 6 July 2010.
[14] A decision by default for a liquidated debt was available in the former CCT where the respondent failed to file a defence within the period required. On proof of service of the application the director of the CCT could give the decision for the amount claimed together with the filing fee, legal costs if any and interest.[1]
[1] Section 115 CCT Act 2003.
Consideration and Findings
[15] The Applicant has chosen to proceed on the ground that he had a reasonable excuse for not attending the hearing, namely that he was not served with notice of the application nor the hearing.
The claim that service of the CCT Application was defective under section 37 QCAT Act 2009
[16] Service of an application to recover a liquidated amount under the CCT Act was governed by sections 41 and 115 of the CCT Act together with section 39 and 39A of the Acts Interpretation Act 1954. Neither provision is difficult or controversial. An individual could be served personally or by remitting documents by post properly addressed to the place of residence of the respondent. The Applicant does not indicate precisely how the service of the CCT application was defective under section 37, which in any event does not apply. This ground has no substance.
A reasonable excuse for not attending the default debt hearing?
[17] Ms Gray’s affidavit of service by post prima facie satisfies the service requirement of the CCT Act and satisfied the CCT officer who made the default order. According to Ms Gray the documents were posted to Lawrence at the Broadbeach address, which Lawrence acknowledges in his affidavit as his residential address.
[18] Ms Gray and Ms Constable contend that Lawrence has twice been served with documents personally at this address. Safeguard states that it has posted documents on 29 June 2009, 16 August 2009, 8 January 2010, and 26 May 2010 to Lawrence at this address. Safeguard says that one of its officers spoke to Lawrence on his mobile phone on 10 and 13 July 2009 advising him that the CCT application was about to be commenced.
[19] Lawrence asks the tribunal to believe that on none of the several occasions when Safeguard served documents by post did he receive them. He has never claimed to reside elsewhere, and on only one occasion did offer sickness as a reason for not receiving post. If Lawrence is to be believed, the diligent attempts of Safeguard to inform him of their brief to recover the debt over an extended period – by a combination of personal service, postal service and several conversations with Safeguard staff by telephone – were all ineffective. In the alternative Lawrence is obliged to claim that Safeguard and its staff have colluded in perjury.
[20] I am not prepared to find that all the process servers “have perjured themselves as a matter of course.”[2] I find that on 16 August 2009 Lawrence was duly served with the Application for Domestic Building Dispute as deposed to in the Affidavit of Service. I find that he had knowledge of the requirement to file a defence, that he did not do so and that the decision in default was properly made. It follows therefore and I so find that Lawrence has no reasonable excuse for not attending the hearing, and has not persuaded me of a reopening ground.
[2] With apologies to WS Gilbert’s Chancellor in “Iolanthe.”
A good defence to the debt?
[21] Mr Philp and the Safeguard witnesses all say that Lawrence has never questioned the debt. Lawrence now says that he has a good defence: uncompleted and defective work. Yet he has waited some 18 months to agitate his complaint with the QBSA. Philp says that he attended the premises to inspect the defect by arrangement with the householder, only to be met with threats and aggression by Lawrence. Such behaviour hardly inspires confidence in his claim to have a good counterclaim. If Lawrence wishes to pursue the matter he is not precluded from commencing a separate action in the Tribunal.
[22] The application to reopen the decision of 5 September 2009 is dismissed.
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