See v Morley
[2014] QCATA 333
•1 December 2014
| CITATION: | See v Morley [2014] QCATA 333 |
| PARTIES: | Andrew See (Applicant/Appellant) |
| v | |
| Wade Morley (Respondent) |
| APPLICATION NUMBER: | APL311 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 1 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 24 June 2014 is set aside. 4. The decision in default dated 5 May 2014 is set aside. 5. The claim is returned to the tribunal for rehearing. 6. Andrew See shall file and serve a response, and any material on which he wants to rely, by 15 December 2014. 7. If Andrew See fails to file and serve a defence by 15 December 2014 Wade Morley shall be at liberty to enter a decision in default of a response. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where decision in default – where application to set aside decision in default refused - whether grounds for leave to appeal Queensland Building and Construction Commission Act 1991 (Qld) s 42 Pickering v McArthur [2005] QCA 294 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Morley did some plumbing work for Mr See. He invoiced $2,893. Mr See did not pay so Mr Morley filed an application for minor debt in the tribunal. Mr See did not file a response, so Mr Morley applied for, and received, a default decision. Mr See applied to set the default decision aside but his application was dismissed.
Mr See now wants to appeal the tribunal’s refusal to set aside the default decision. He says that Mr Morley is subject to action by the Queensland Building and Construction Commission. He says that it would be a substantial injustice to enforce payment of the full amount, which includes a profit contrary to s 42 of the Queensland Building and Construction Commission Act 1991 (Qld).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr See’s submissions to the appeal tribunal do not address the fundamental question of whether the learned Adjudicator erred in refusing to set aside the default decision. As she correctly observed[3], there were six elements for the learned Adjudicator’s consideration in determining whether the default decision should be set aside.
[3]Reasons for decision at [6], [7]
The learned Adjudicator was not persuaded that Mr See had a good reason for failing to file a response. She noted that Mr See had been ill but she did not consider that the doctor’s letter explained the failure. Mr See was served 16 February 2014. Mr Morley obtained a decision in default on 5 May 2014. Mr See filed the application to set aside the decision on 2 June 2014. His doctor’s letter, dated 7 May 2014, refers only to surgery ‘earlier in the year’. It does not explain adequately the period from February to May. It does not explain at all, the period from May to June. I agree with the learned Adjudicator’s finding that Mr See did not adequately explain his failure to file a response, or his delay in filing an application to set it aside.
Similarly, the learned Adjudicator was not persuaded that Mr See had a valid defence. The only reason Mr See refused to pay Mr Morley seems to be that Mr Morley was not a licensed plumber and, therefore, was not entitled to charge for his own labour nor was he entitled to make a profit[4].
[4]Queensland Building and Construction Commission Act s 42(4).
In response to the application to set aside the default decision, Mr Morley takes issue with the application of s 42 of the Queensland Building and Construction Commission Act. He submits that he is licensed in New South Wales and that he is regularising his licence in Queensland. He also submits that stormwater work is not plumbing work and, therefore, he did not need to be licensed to carry out this work. It is clear on the parties’ material that Mr See does have an arguable defence to Mr Morley’s claim.
One of the factors the learned Adjudicator identified as a factor in deciding whether to set aside a default decision was the issue of prejudice. Would Mr Morley be suffer prejudice that cannot be adequately compensated by a suitable award of costs?
The costs the tribunal can award in its minor civil dispute jurisdiction are limited and it is unlikely that they would compensate Mr Morley for the delay. But the tribunal can order the payment of interest and I am satisfied that any prejudice Mr Morley might suffer could have been compensated by the addition of interest.
In any event, Mr See has now paid the amount of the decision. Any prejudice Mr Morley may have suffered through a reopening has disappeared.
Mr See’s application to set aside the decision in default had little to commend it. He does not explain a delay of almost 2½ months. He does not explain a further one month delay after he was served with the default decision. Nevertheless, Mr See does have an arguable defence and Mr Morley will not suffer any prejudice by having the decision set aside. Although Mr See’s application flies in the face of the tribunal’s obligation to determine matters in a way that is economical, informal and quick[5], I am persuaded, in this limited case, that, because the learned Adjudicator did not consider the issue of prejudice, her decision should be overturned.
[5]QCAT Act s 3(b).
Leave to appeal is granted and the appeal is allowed. The decision of 24 June 2014 is set aside as is the decision in default dated 5 May 2014. The claim is returned to the tribunal for rehearing. Mr See shall file and serve a response, and any material on which he wants to rely, by 15 December 2014. If Mr See fails to file and serve a response by 15 December 2014 Mr Morley shall be at liberty to enter a decision in default of a response.
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