PRD Nationwide v de Abaitua (No 2)
[2010] QCATA 33
•27 July 2010
| CITATION: | PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33 |
| PARTIES: | Mr Greg Brewster t/a PRD Nationwide (Applicant) |
| v | |
| Paul de Abaitua (Respondent) |
APPLICATION NUMBER: APL060-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 27 July 2010
DELIVERED AT: Brisbane
ORDERS MADE:
1.Grant leave to appeal;
2.Allow the appeal, and set aside the decision by default made on 12 April 2010;
2.Give leave to Mr de Abaitua, if he wishes, to file a further application for determination of a minor civil dispute; and
3.Direct that he be exonerated from any filing fee for that further application.
| CATCHWORDS : | PRACTICE AND PROCEDURE – MINOR CIVIL DISPUTE – DECISION BY DEFAULT – Queensland Civil and Administrative Tribunal Act 2009, s 50 – where respondent granted decision by default – where claim was not liquidated debt pursuant to the Act – whether decision entered regularly – whether error of law Queensland Civil and Administrative Tribunal Act 2009, ss 28, 50, 51, 61, 142(3)(a)(i), 146, 149(2) Bratic v Toohey [1998] 2 Qd R 140, applied |
REASONS FOR DECISION
Mr de Abaitua obtained a decision by default for a minor debt claim on 12 April 2010 in which he received $6,324.64 for the claim, and $127.50 for costs. There are a number of things wrong with the procedures which led to that decision and, for the reasons which follow, it must be set aside.
The material which led to the decision by default in QCAT’s minor civil disputes jurisdiction was very sparse. Mr de Abaitua’s original application alleged that Mr Brewster failed to settle what appeared to be a conveyance of real property on 30 September 2009, and failed to determine that title would be available on that date so that settlement did not occur until December 2009. It is also alleged that there was damage to the property and missing items and, presumably, Mr de Abaitua sought compensation. The claim was brought against Mr Brewster, apparently trading as PRD Nationwide.
When Mr Brewster failed to file a response, Mr de Abaitua filed a request for decision by default simply alleging that his claim for $6,452.14 was for a “debt or liquidated demand of money” that had not been satisfied. On 12 April 2010, a delegate of QCAT’s Principal Registrar granted the decision by default for that sum.
Mr Brewster filed an application for leave to appeal, and an appeal, on 20 April 2010. On 21 April this Appeal Tribunal made a directions order to the effect that his application would be determined on the papers by the filing and exchange of written submissions. The parties have complied with those directions. The Appeal Tribunal also ordered, on 18 June 2010, that execution of the decision by default be stayed until further order. Reasons for that decision were provided to both parties.
The parties’ written submissions contain extensive material about what lies behind Mr de Abaitua’s original claim, and what Mr Brewster says is his good defence to it and the reasons why he failed to file a response.
A copy of the contract of sale for real property, which apparently led to Mr de Abaitua’s claim, was not provided by either party. However, it is clear from their submissions that Mr Brewster is a real estate agent, but that it was a company, Fanbridge Pty Ltd trading as PRD Nationwide Runaway Bay, and not him, which was the agent in the sale to Mr de Abaitua of a property at 8852 Magnolia Drive. The identity of the owners is not precisely revealed but the parties’ material is enough to establish that the owner was not Mr Brewster; and, that Mr de Abaitua was the purchaser.
According to the extensive material filed by Mr de Abaitua, there were lengthy delays in settlement because of the owner’s inability to remove tenants from the property. That delay, Mr de Abaitua alleges, caused him extra expense – additional legal fees of $4,374.64; additional costs of $800, presumably associated with the finance for the property; and, moving and storage costs plus some extra charges for mobile phone calls and cleaning amounting to about $1,000.
In his material Mr de Abaitua alleges that Mr Brewster warranted and guaranteed vacant possession; failed to act when it was evident that vacant possession could not be guaranteed by the settlement date; failed to determine that title could be transferred at that time; and, failed to ensure the property was clean.
It is also clear, from Mr de Abaitua’s material and submissions filed in the present appeal, that both parties had lawyers acting for them. It is not clear whether Mr de Abaitua has sought any remedy from the vendors, or anyone else.
Under s 50 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Tribunal may give a decision by default in proceedings in which a party applies to recover a debt or liquidated demand of money. As explained in this Appeal Tribunal’s earlier decision of 18 June 2010, Mr de Abaitua’s claim was not for a debt or liquidated demand of money. A claim is “liquidated” when the sum is ascertained, or capable of being ascertained by calculation through the use of a formula: Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138, at 142. The difference between a claim for a debt or liquidated demand, and a claim for damages or compensation arising out of a contract for the sale and purchase of land was explained by Barrett J in Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, in a passage at 297-298, which is set out in full in at paragraph [14] of my earlier decision.
Material filed by Mr de Abaitua now makes it clear that his claim is one for compensation for what are said to be breaches of Mr Brewster’s alleged duty as a real estate agent. Although presumably assisted by lawyers, I pause to remark that if the inabilities to provide vacant possession, or clear title, or premises which in terms of cleanliness meet the terms of the contract arise, they would commonly lead to an action against the vendor for damages for breach of contract (rather than the real estate agent). However, it is sufficient for present purposes simply to observe (as the facts compel) that Mr de Abaitua was not entitled to a decision by default because his claim was not for a debt, or liquidated damages.
Because Mr Brewster’s appeal is against a decision in a QCAT minor civil dispute, he was obliged to seek leave: QCAT Act, s 142(3)(a)(i). Here, the granting of a decision by default involved a plain misunderstanding of the circumstances in which a decision of that kind could be made under s 50 of the QCAT Act, and must be corrected to avoid substantial injustice to the applicant, arising from the error: QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6]. The application for leave to appeal must, then, be granted.
Mr Brewster’s appeal itself also hinges, it follows, on a question of law: whether the facts before the decision maker properly fell within s 50. On any view they did not, and that is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1.
Under s 146 of the QCAT Act, when deciding an appeal against a decision on a question of law the Appeal Tribunal may confirm or amend the decision, or set it aside and substitute its own decision, or set it aside and return the matter to the Tribunal for reconsideration. It may also make any other necessary or appropriate orders: s 146(d).
Although Mr Brewster is apparently assisted by lawyers in these appeal proceedings, neither he nor they have attempted to bring a separate application under s 51 of the QCAT Act which allows a respondent to have a decision by default set aside particularly when, as it is now clear here, the judgment was irregularly entered: Bratic v Toohey [1998] 2 Qd R 140.
In any event, Mr Brewster has filed an affidavit in support of his submissions in which he alleges that the agent for the property sale referred to in these proceedings was not him, but Fanbridge Pty Ltd trading as PRD Nationwide Runaway Bay; that any problems associated with the delay in settlement were not caused by any action of his, or the real estate agent’s part; and, that he has the defence on the merits.
In support of his original application for leave to appeal Mr Brewster also asserted that on receipt of Mr de Abaitua’s QCAT application he referred it to the professional indemnity insurer of Fanbridge Pty Ltd which, in turn, referred the matter to its solicitor who, Mr Brewster believed, would act to protect his interests. In his affidavit Mr Brewster also acknowledges that he ought to have filed an application to set aside the default judgment, and have the matter reopened
Under s 28 of the QCAT Act the Tribunal is obliged to act fairly, and according to the substantial merits of the case, and with as little formality and technicality as the Act or Rules, or a proper consideration of the matters before it, permit. Under s 61, the Tribunal can extend or shorten time limits fixed by the Act or Rules and waive compliance with procedural requirements (or Rules).
Under QCAT r 45 a respondent to a minor debt claim who wishes to respond must do so within 28 days after being given a copy of the application. Leave could be given to Mr Brewster to file and serve a response now – but, for the reasons explored earlier, the continuance of the present proceedings as a QCAT minor debt action would be pointless because Mr de Abaitua’s claim could never qualify as one which correctly seeks to recover a debt or liquidated demand, to which s 50 applies.
The fact the current proceedings have no continuing utility is the product of two errors: first, on the part of Mr de Abaitua, in bringing an application for determination of a minor debt when his claim was not, in truth, of that kind; and, secondly, on the part of the delegate of the Principal Registrar, who failed to point out this error to him and, then, incorrectly gave him a decision by default. For the latter reason he ought be excused any filing fee on his new application, if he wishes to take that course.
If Mr de Abaitua wishes, notwithstanding what is contained in this decision, to pursue his claim against Mr Brewster (or against Fanbridge Pty Ltd) he will logically do so by a new application for determination of a minor civil dispute (not a minor debt claim) – to which Mr Brewster may, if he wishes, file a response: QCAT r 44.
There is one additional matter arising in Mr de Abaitua’s submissions which should be addressed. In a letter to the QCAT Appeals Manager of 13 July 2010 enclosing further submissions he indicates that the submission is “… to Appeal the Decision to Stay a Decision granted 18 June 2010”.
Under s 149(2) of the QCAT Act a party to a proceeding may appeal to the Court of Appeal against a decision of the tribunal in the proceeding if a judicial member constituted the tribunal; but again, despite the apparent assistance from lawyers, there has been a failure to appreciate that the subsection specially excludes a proceeding which is itself an appeal under Chapter 2, Part 8, Division 1 of the Act.
Under s 150(1) a person may appeal to the Court of Appeal against a decision of the Appeal Tribunal, but only a decision to refuse an application for leave to appeal to the Appeal Tribunal. It does not appear that a decision by the Appeal Tribunal to stay the operation of the decision being appealed against, until the appeal is finally decided (a power granted to the Tribunal under s 145(2)) may be appealed. It is unnecessary to decide the matter, about which Mr de Abaitua must make his own decision or take advice.
The appropriate orders are to set aside the decision by default made on 12 April 2010; to give leave to Mr de Abaitua, if he wishes, to file a further application for determination of a minor civil dispute, and to exonerate him from any filing fee, if he chooses to take that course. Because any decision by Mr Brewster to respond (or not) is elective (r 45) it is unnecessary, I think to make any further orders.
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