Paradise Produce NT Pty Ltd v Arnolds Fibreglass Repairs Pty Ltd
[2010] QCATA 32
•21 July 2010
| CITATION: | Paradise Produce NT Pty Ltd v Arnolds Fibreglass Repairs Pty Ltd [2010] QCATA 32 |
| PARTIES: | Paradise Produce NT Pty Ltd (Applicant) |
| v | |
| Arnolds Fibreglass Repairs Pty Ltd (Respondent) |
APPLICATION NUMBER: APL115-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 21 July 2010
DELIVERED AT: Brisbane
ORDERS MADE:
Application for leave to appeal refused.
| CATCHWORDS : | DECISION BY DEFAULT – MINOR DEBT – LEAVE TO APPEAL – where applicant did not file response to original application – where respondent granted decision by default – where applicant sought leave to appeal rather than set aside the decision – where applicant did not file for leave within required time – where applicant did not advance the usual arguments for seeking leave to appeal – whether leave should be granted DECISION BY DEFAULT – LIQUIDATED DEBT – where applicant did not file response to original application – where respondent granted decision by default – where applicant did not apply to set aside decision – where applicant did not advance the usual arguments in seeking to set aside a decision by default – whether adjudicator was entitled to rely on uncontested evidence Queensland Civil and Administrative Tribunal Act 2009, ss 43, 51, 142(3) Cachia v Grech [2009] NSWCA 232, applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, applied Rosing v Ben Shemesh [1960] VR 173, cited |
REASONS FOR DECISION
On 14 April 2010, Arnolds Fibreglass Repairs Pty Ltd obtained an uncontested decision from a QCAT adjudicator who ordered that Paradise Produce (NT) Pty Ltd pay Arnolds $3,701.38 (inclusive of costs and interest) for its claim against Paradise for work in the nature of boat repairs it claimed to have performed for Paradise last year.
Arnolds’ decision was regularly obtained. It proved, by affidavits, that it had served Paradise with its original application for recovery of the repair costs on 5 March 2010, and also filed an affidavit confirming that its account remained unpaid.
The Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) allows a person to recover a debt or liquidated demand of money from a person if the latter has not responded to the original application within a stated period. Arnolds’ claim was for what the QCAT Act calls a minor civil dispute – relevantly, here, a claim arising out of a contract between a consumer and a trader.[1] Under QCAT Rule 44(2)(a)(ii) Paradise was, upon being served with Arnolds’ application, obliged to file any response within 28 days. Upon proof that it did not do so, and that the claim was still unpaid, Arnolds was entitled to seek (and the learned adjudicator to grant) a decision by default under s 50 of the QCAT Act.
[1]QCAT Act, Schedule 3
If Paradise believed the decision by default under s 50 was improperly entered it could have applied under s 51 (Setting aside decision by default), but has not done so.
Rather, it has sought leave to appeal the adjudicator’s decision. Leave is necessary: QCAT Act, s 142(3)(a)(i). It has, however, brought that application for leave a considerable period out of time. Under s 143(3) the application for leave should have been filed within 28 days after the date Paradise received written reasons for the decision. According to submissions on behalf of Arnolds, a copy of the decision was sent to Paradise by letter dated 27 April 2010.
The application for leave to appeal by Paradise was filed in QCAT by solicitors and accompanied by a letter to the effect that they acted for Paradise. Neither the letter, nor the application for leave to appeal:
(a) seek leave to be legally represented, as required by s 43 of the QCAT Act;
(b) contain any explanation why Paradise failed to file a response to the original application;
(c) advance any explanation or reasons why the application for leave to appeal is out of time;
(d) address s 51;
(e) assert that the decision by default was irregularly entered; or,
(f) advance (as discussed below) any submissions referable to the grounds usually relied upon to justify and support an application for leave to appeal.
The application for leave contains nothing more than an assertion that Paradise denies it ever asked Arnolds to carry out boat repairs; that it actually owns a boat; and, the time-worn pleading that it is “not indebted as alleged or at all”. The only relief sought is that the decision by default be set aside and that Paradise be granted leave to file a response.
Arnolds has filed lengthy submissions including emails from a Mr Jack Paradisis effectively admitting the debt (although not, it should be said, conceding that it was a debt of the company Paradise Produce NT Pty Ltd). Arnolds’ material also shows, however, that a person with the surname Paradisis is a director and secretary of the company and that the boat itself has been advertised for sale in terms referring to the work carried out by Arnolds and showing a similar phone number to that provided by Paradise in its application for leave to appeal.
The learned adjudicator was entitled to rely upon the uncontested affidavits before her. Nothing, save a bald contrary assertion, has been provided by Paradise to dispute the company’s indebtedness. The material from Arnolds otherwise corroborates, however, the existence of an agreement between it and Paradise in connection with the boat.
Although, as observed earlier, Paradise has not sought to set the judgment aside it is appropriate to refer to the usual tests in an application of that kind. The central question is, ordinarily, whether or not there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand.[2] For the reasons just explored, the submissions made for Paradise fall well short of being persuasive that some injustice would arise here. In addition Paradise has simply failed to explain how or why it did not appear or deliver a response, or the delay in seeking to set the judgment aside.[3]
[2]Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 per Jordan CJ at 243.
[3]Rosing v Ben Shemesh [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] Qd R 447.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232 at [13].
[6]QUYD Pty Ltd v Marvass Pty Ltd (supra).
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The application for leave, apparently prepared and filed by lawyers, addresses none of these matters. Even so, for the reasons explored earlier, there is nothing in the applicant’s material which is even moderately persuasive that it can rely upon any of these factors; and, again, there is nothing to suggest the decision by default was not regularly obtained. For these reasons, the application for leave to appeal should be refused.