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

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.

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

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

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Secure Investing Pty Ltd v Rees

Details

AGLC: Secure Investing Pty Ltd v Rees [2012] QCATA 28
Case: [2012] QCATA 28
Decision Date: 21 February 2012

CaseChat Overview and Summary

Secure Investing Pty Ltd sought leave to appeal a decision in favour of Rees, who had successfully brought proceedings for payment of fees against the company. The crux of the dispute was whether the company was served with the proceedings as required by law, which would determine the validity of the judgment against it. Rees claimed to have served the proceedings via mail, while Secure Investing argued that it had not received the claim, and therefore, the default judgment was invalid.

The court needed to decide if Secure Investing could present legally persuasive evidence to show that it was not properly served. The question hinged on whether the company had demonstrated a credible basis for not receiving the proceedings, which would require more than mere assertions of non-receipt without any corroborating evidence. The court was tasked with assessing the reliability and credibility of the evidence presented by Secure Investing.

In its reasoning, the court found that Secure Investing had not provided any legally persuasive evidence to support its claim of non-receipt. The company's argument was based on assertions without concrete evidence to substantiate its claim. The court concluded that there was no basis to doubt the affidavit sworn by Rees, which detailed the service by mail. Consequently, the court dismissed the application for leave to appeal, affirming the original judgment in favour of Rees.

Orders

Orders of the court

1. Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.