Ryan v Wehi
[2011] QCAT 376
•12 July 2011
| CITATION: | Ryan v Wehi [2011] QCAT 376 |
| PARTIES: | Mr Michael Ryan t/as MJ Ryan Builders |
| v | |
| Mr Dave Wehi Ms Celia Rowe |
| APPLICATION NUMBER: | BDL065-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 12 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 12 July 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The default judgment is set aside. |
| CATCHWORDS: | Setting aside default judgment Queensland Civil and Administrative Tribunal Act 2009, s 51 Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Michael Ryan t/as MJ Ryan Builders |
| RESPONDENT: | Mr Dave Wehi and Celia Rowe |
REASONS FOR DECISION
On 12 July 2011 I made a decision that the default judgment entered in favour of the applicant be set aside. The applicant has requested reasons for that decision.
Background
The applicant (Mr Ryan) filed a domestic building dispute application on 22 March 2011 against the respondents Celia Rowe and David Wehi seeking payment in the sum of $26,815.49 plus damages and costs alleged to be owing pursuant to a building contract entered into between Mr Ryan and Ms Rowe and Mr Wehi.
An affidavit of service of the application was filed by an employee of the applicant’s solicitors deposing to the fact that he had sent a copy of the application by post to the respondents at their address.
No response was filed and on 15 April the Tribunal awarded judgment by default in favour of Mr Ryan for the claim plus costs and interest in the total sum of $29,874.21.
On 3 May 2011 the respondents wrote to the Tribunal advising that they had become aware that a default judgment had been entered against them as steps had been taken to enforce the judgment. They advised that they had not been aware that proceedings had been issued and in fact had been waiting for some time for the applicant to pursue the dispute through the Courts. They reiterated that they wished to respond to the application.
The respondents had contact with the Tribunal Registry from that point on. The Registry did send the respondents a copy of the application and it would appear from the file that it was suggested to them that they make an application to reopen the proceedings. They did file an application for reopening on 2 June 2011.
That application for reopening came on before myself at a directions hearing on 12 July 2011.
Prior to that directions hearing the respondents had advised in their application for reopening that they had not received the application; that the dispute with the applicant had been ongoing for some time and that the last correspondence they had in relation to the dispute was an email they had sent to the applicant in December 2010 suggesting that “they apply for legal application to a dispute”.
They advised that they had a genuine dispute with the remaining outstanding balance (the subject of the claim) and that there had been correspondence in the preceding 6 months (July to December 2010) in an attempt to come to an agreement with the applicant.
[10] The applicant’s solicitors filed a response to the reopening application submitting that the application for reopening should be dismissed as the respondents had not complied with the appropriate notice provisions with respect to the reopening application and further that the respondent had not established a reopening ground as required by section 137 and 139(4) of the QCAT Act.
[11] At the directions hearing on 12 July both parties were present.
[12] The respondents made submissions in similar vein to their written submissions namely that the dispute had been ongoing for some time and that they had been in correspondence with the applicant’s solicitors. They anticipated and were indeed hopeful that the applicant would commence proceedings to resolve the outstanding issues.
[13] They pointed out that they had in fact, subsequent to the judgment being entered into, lodged a detailed response to the claim which set out the basis upon which they disputed the amounts claimed.
[14] It was apparent to me that the appropriate application that should have been made by the respondents in these circumstances was an application to set aside the default judgment. They had instead, acting on advice, filed an application to reopen the decision.
[15] Under section 61 of the QCAT Act the Tribunal may waive compliance with procedural requirements of the QCAT Act or its rules.
[16] In the interests of dealing with the matter efficiently and without further delay I elected to treat the application as one to set aside the default judgment.
[17] I heard submissions from both the applicant and the respondents as to whether or not the judgment should be set aside.
[18] Under section 51 of the QCAT Act the Tribunal has power to set aside or amend a decision by default given under section 50 of the Act.
[19] The test to be applied in considering whether to set aside a decision by default has been set out by the President in Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 at 11 to 14 as follows:
(a)Section 51 is in very similar terms to rule 290 of the Uniform Civil Procedure Rules 1999.
(b)Decisions on Rule 290 show that, among the factors relevant to the discretion arising under it are whether or not there is a good reason for the respondents’ failure to file the response: any delay in bringing the application: the respondents’ conduct in the proceedings before and after judgment: the respondents’ good faith, whether the respondents have raised a defence on the merits, and whether the applicant would be severely prejudiced if the judgment was set aside.
[20] I was satisfied after hearing from the respondents at the directions that they did not receive a copy of the application although it was posted to their address. In view of the history of the matter I found it extremely unlikely that they would ignore an application if they had in fact received it. The respondents did not delay once they were aware that judgment had been entered. They made contact with the Tribunal and sought advice as to the appropriate method to deal with the decision which they wished to oppose.
[21] I was also satisfied on reading the proposed response of the respondents that the respondents had raised a defence on the merits. I was not persuaded that the applicant would be severely prejudiced if the judgment was set aside.
[22] In all of the circumstances I ordered that the judgment be set aside and made directions accordingly.
[23] I have noted in reviewing the file to deliver these reasons that the decision setting aside the default judgment has been issued under the file no REO008-11. As I determined that it was more appropriately an application to set aside the default judgment, I will make the orders in BDL065-11.
Orders
The default judgement be set aside.
The Respondent / Mr Michael Ryan t/as MJ Ryan Builders has leave to file two copies in the Tribunal and give one copy to the Applicants / Mr Dave Wehi and Ms Celia Rowe of a response to the counter-claim dated 2 June 2011.
The application is listed for a Compulsory Conference at Brisbane at 1:30pm on 5 September 2011.
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