Nathan Lawyers Pty Ltd v Jones
[2014] QCAT 572
•6 November 2014
| CITATION: | Nathan Lawyers Pty Ltd v Jones [2014] QCAT 572 |
| PARTIES: | Nathan Lawyers Pty Ltd (Applicant) |
| v | |
| Traci Haelli Jones (Respondent) |
| APPLICATION NUMBER: | MCDO0851-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Howe |
| DELIVERED ON: | 6 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application to set aside default decision dismissed |
| CATCHWORDS: | Minor civil dispute – application to set aside the default decision – meritable defence |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
By application filed 22 April 2014 the applicant sought recovery of monies claimed to be due from the respondent for professional legal services rendered. The claim was for $11,351.50 and included an additional claim for interest totalling $6,425.19.
The applicant couldn’t locate the respondent. The applicant applied and was granted the right to serve the application by substituted service. The application was posted to postal addresses and forwarded by email in accordance with the order for substituted service made 23 June 2014. In accordance with that order service was deemed effected on 5 July 2014.
On the front page of the application for minor civil dispute served in accordance with the substituted service order, the following statement is made in large print with the heading “Warning to Respondents” and the attention of the respondent brought to the requirement that a respondent complete and lodge a form 7 Response to the minor civil dispute application within 28 days after being given a copy of the application. Otherwise, the warning states, the applicant may apply to the Tribunal for a decision by default against the respondent.
Enclosed with the application was a copy of the order permitting substituted service. The order stated that service would be deemed to have occurred within five days after the authorised methods of service were attended to.
The respondent did not file any response. The applicant applied for and was granted default judgement on 5 August 2014. The judgement was registered as a Magistrates Court judgement on 19 August 2014. On 4 September 2014 the respondent filed an application to set aside the default decision.
The respondent admits that on about 25 July 2014 her daughter provided her with a copy of a letter from the commercial agents acting for the applicant. That letter apparently enclosed the Minor Debt Application by way of service. The respondent says on or about 25 July 2014 she contacted QCAT in relation to the proceedings and was advised that after 28 July 2014 she would receive a letter advising when the proceedings were set down for hearing. Further, that letter would set out what forms she needed to complete and at what time she would need to arrange a teleconference to provide her evidence, and that nothing could be done until she received that letter from QCAT. She says she provided QCAT with her mobile telephone number and details of her Sydney PO Box.
There is no record in the QCAT file recording such conversation. If indeed the conversation took place, which I do not accept, there is no indication from the respondent what she said to the QCAT officer to prompt the officer to give such poor advice.
The Minor Debt Application document made it very clear that a response was necessary to the application. I conclude the respondent either ignored the requirement to file a response as clearly explained in the application document or delayed in acting in timely fashion in own interests.
Has the respondent any meritable defence? The respondent says part of her defence, should the default decision be set aside, will be that the applicant and respondent reached an oral agreement in about September 2008 pursuant to which the respondent would pay a compromised sum being a proportion of money allegedly owing to the applicant and she would pay her barristers fees directly to the barrister. She claims she paid in accordance with that compromise by paying both the applicant and the barrister. There is no supporting material filed with her application.
The applicant denies any such compromise and denies anything has been paid. Copy emails to the respondent post September 2008 appear to contradict the respondent’s claims that payment has been made to the applicant in accordance with an agreed compromise.
An affidavit by Russell John Byrnes of Counsel sworn 5 September 2014 has been filed in which Mr Byrnes states he acted for the applicant in the matter of a domestic violence proceeding in March 2008, apparently the subject of the account and work sued on by the applicant herein, and he rendered an invoice of $3,453.99 for the work performed for the respondent and to the date of swearing the affidavit he has not been paid. He also swears the respondent has never contacted him directly to make payment or to discuss the fees owing to him.
Given the respondent asserts the compromise was agreed in September 2008, the defence that the applicant’s claim is statute barred has limited prospects of success.
In all the circumstances the application to set aside the default decision is refused.
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