Ndisp Pty Ltd v Bowieberghs Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NDISP Pty Ltd v Bowieberghs Pty Ltd  [2024] QCATA 99

PARTIES:

NDISP PTY LTD

(applicant/appellant)

v

BOWIEBERGS PTY LTD

(respondent)

APPLICATION NO/S:

APL012-23

ORIGINATING APPLICATION NO/S:

Q428-22 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

13 November 2024

HEARING DATE:

1 October 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     Grant leave to appeal and leave to rely on additional evidence. 

2.     Allow the appeal. 

3.     Set aside the decision of the adjudicator on 18 November 2022 to dismiss the appellant’s application to set aside the default decision made on 20 October 2022. 

4.     Order that the default decision of the Tribunal made on 20 October 2022 be set aside. 

5.     Direct that the affidavit of D W Richards affirmed 22 October 2024 stand as the appellant’s Response to the Minor Debt Claim. 

6.     Direct that the substantive proceeding be listed for further directions on a date to be advised by the Tribunal. 

7.     No order as to costs. 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Default decision – application to set aside – relevant considerations – whether prima facie defence on the merits shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 51.

Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52
Embrey v Smart [2014] QCA 75
Evans v Bartlam [1937] AC 473
HL v HR [2024] QDC 176
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd [2020] QCATA 136

APPEARANCES & REPRESENTATION:
Applicant:	D Richards, director of the appellant
Respondent:	C Bowie and P Bowie, directors of the respondent

REASONS FOR DECISION

1. On 8 August 2022 the respondent filed in the Tribunal at Southport an Application for Minor Civil Dispute – Consumer/trader dispute, claiming payment of $24,324.06 from the appellant, together with the filing fee.[1]  On the same day, the respondent posted a copy of the application to the postal address of the appellant.  On 5 September 2022 a mediation was held by telephone, but the dispute was not resolved.  The proceeding was then set down for hearing on 4 October 2022, and a hearing notice for a hearing by telephone on that date was posted to the appellant on 6 September 2022.  On the same day, a copy was sent by email to a particular address.[2] 

   [1]For my convenience I shall refer to NDISP Pty Ltd as the appellant, and Bowiebergs Pty Ltd as the respondent. 

   [2]The address from which Mr D Richards, the director of the appellant, had sent an email to the Southport registry on 5 September 2022. 

2. On 14 September 2022 the respondent filed an application for a hearing in person, and on 23 September 2022 an adjudicator ordered that the parties have leave to attend the hearing in person.  This permitted, but did not require, each party to attend in person.  In…