PBV Pty Ltd atf EBVG Trust v McKeirnan

[2013] QCATA 145

CITATION: PBV Pty Ltd atf EBVG Trust v McKeirnan [2013] QCATA 145

PARTIES:	PBV Pty Ltd atf EBVG Trust (Applicant/Appellant)
v
Ms Margarita McKeirnan (Respondent)

APPLICATION NUMBER: APL108-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 14 May 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for an extension of time dated 12 March 2013 is refused.

2.    The application for miscellaneous matters is dismissed.

3.    The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – application to extend time for filing application for leave – where no explanation for the delay – where ground of appeal is credibility of witness statement

Queensland Civil and Administrative TribunalAct 2009 (Qld), s 61

Dearman v Dearman (1908) 7 CLR 549

Chambers v Jobling (1986) 7 NSWLR 1

Fox v Percy (2003) 214 CLR 118
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1978] VR 257
Legal Services Commissioner v Bradshaw[2009] QCA 126

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 14 December 2012, the Tribunal ordered that Ms McKeirnan was relieved on any obligation to pay invoices rendered by PBV Pty Ltd atf EBVG Trust.

2. PBV filed an application for leave to appeal this decision on 13 March 2013. It also filed an application to extend the time in which to file the application for leave to appeal.

3. I have the power to extend time for compliance with a procedural requirement.[1] The issue I have to decide is whether it is the interests of justice to grant the extension.[2] Relevant considerations include the length of the delay and the reasons for it; the merits of the appeal and its prospect of success on appeal if leave is granted; and, the degree of prejudice to the Ms McKeirnan if time is extended.

   [1]            Queensland Civil and Administrative Tribunal Act 2009 s 61(1).

   [2]For example, see Legal Services Commissioner v Bradshaw[2009] QCA 126; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd[1978] VicRp 27; [1978] VR 257.

4. PBV has not explained the reasons for its delay in filing the application.

5. PBV’s only ground of appeal is that Ms McKeirnan gave the learned Adjudicator a false and misleading statement. The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] If the learned Adjudicator heard evidence from both parties, and formed a view as to which of the parties he believed, it is unlikely that the Appeal Tribunal would overturn the learned Adjudicator’s decision.

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [4]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

6. PBV has been pursuing the alleged debt for some time. It issued a series of statutory demands, against a company with which Ms McKeirnan was connected. There should be an end to the litigation between the parties. I am satisfied that Ms McKeirnan will be prejudiced by the application to extend time, particularly given PBV’s failure to explain its delay.

7. The application for an extension of time should be dismissed. It follows, therefore, that the application for leave to appeal should also be dismissed, as should the application for representation.