Secure Investing Pty Ltd v Rees

[2012] QCATA 28

CITATION: Secure Investing Pty Ltd v Rees [2012] QCATA 28

PARTIES:	Secure Investing Pty Ltd (Applicant/Appellant)
v
Ken Rees (Respondent)

APPLICATION NUMBER: APL407-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 21 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.        Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the Respondent had brought proceedings for payment of fees against the Applicant company– where the Respondent had filed an affidavit to the effect that he had served the proceedings by mail – where the Respondent had obtained a decision against the company by default – where the Applicant alleged that the company was never served with the claim – whether the Applicant can show any legally persuasive evidence that the application was not properly served

Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 28, 32, 51, 138
Uniform Civil Procedure Rules 1999, r 290

Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. In June 2011, Mr Rees brought proceedings against Secure Investing Pty Ltd for commissions that, he said, were owed to him for consulting and sales work he had performed.  The amount claimed was $5,150.  The address shown for the company was Level 1, 514 Ipswich Road, Woolloongabba Qld 4102.

1. Mr Rees later filed an affidavit to the effect that he had served the proceeding on the company at that address by mail.

1. Subsequently he obtained a decision by default on 16 August 2011.

1. On 27 September 2011 Secure Investing brought a QCAT application for miscellaneous matters alleging that it had never received the original application from Mr Rees, and that its correct address is Level 1, 154 Ipswich Road, Woolloongabba. That application was appropriately dealt with by a QCAT member as, in truth, an application for reopening under s 138 of the QCAT Act and, also unsurprisingly, refused.

1. Now, Secure Investing has brought an application for leave to appeal.  The only ground is, again, an allegation that the company was never served with the original claim at its registered or postal address.

1. By direction of the Appeal Tribunal, the application for leave to appeal is to be heard and determined on the papers, on the basis of written submissions from both parties, which have now been filed.

1. Secure Investing Pty Ltd asserts, in its submissions, that its first knowledge of the claim was when it learned of a judgement that had been registered in the Magistrates Court.  The company also denies any indebtedness to Mr Rees.

1. Mr Rees contests this.  He alleges a history of correspondence and communications between him and Secure Investing’s Director Mr Ron Hesketh about his claims.  In particular, his submissions ask how the company knew of the existence of the judgement if it had never received any mail, communication or information about it.

1. Neither party has produced any legally acceptable record about the company’s registered office, although Mr Rees did produce the results of a search in Google, which shows the same address as that which appeared in his original application.

1. Under s 51 of the QCAT Act the Tribunal may, on application, set aside or amend a decision by default if the Tribunal considers that is the appropriate course. As observed in an earlier decision of the QCAT Appeals Tribunal[1], the discretion QCAT has under s 51 is similar to that invested in the courts under rule 290 of the Uniform Civil Procedure Rules 1999, but should be construed in light of requirements in the QCAT Act that the Tribunal must exercise its jurisdiction with as little formality and technicality as is consistent with the fair and proper consideration of the issues before it.[2]

   [1]        Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151.

   [2]        Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 28.

1. Here, Secure Investing Pty Ltd has brought almost every conceivable application it could about the default judgement, except the one which is specifically applicable, under the QCAT Act – i.e., an application to set aside a default judgement.

1. In the absence of any legally persuasive evidence that the application was not properly served, Secure Investing Pty Ltd has failed to show any basis upon which it is entitled to obtain leave to appeal.

1. If Secure Investing Pty Ltd wishes to set aside the default judgement, it should bring the correct application under s 51 of the QCAT Act, supported by evidence showing that the address in Mr Rees original application was wrong – e.g., ASIC records.