Wanless Enviro Services Pty Ltd v Network Office Supplies Pty Ltd

[2013] QCAT 355

CITATION: Wanless Enviro Services Pty Ltd v Network Office Supplies Pty Ltd [2013] QCAT 355

PARTIES:	Wanless Enviro Services Pty Ltd (Applicant)
v
Network Office Supplies Pty Ltd (Respondent)

APPLICATION NUMBER: MCDO152/13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: John Bertelsen, Adjudicator

DELIVERED ON: 15 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The default decision entered 26 April 2013 is set aside.

2.     The respondent shall file and serve its response within 28 days.

3.     The application shall thereafter, subject to any directions, be set down for hearing.

CATCHWORDS:

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Network Office Supplies Pty Ltd has filed an application to set aside a default decision.  In considering the setting aside of a default decision the following are considerations to be taken into account:

   (a)Whether there is good reason why the respondent failed to file a response.

   The respondent incorrectly thought the claim being over $3,000.00 would first proceed to mediation.  However notice given with service of the initiating application states the respondent has 28 days to respond otherwise the applicant could apply for a default decision.  This argument is plausible but not compelling.

   (b)Delay in bringing the application to set aside.

   Default decision was entered 26 April 2013.  The application to set aside is filed 8 May 2013.  There is no delay of consequence.

   (c)Respondents conduct before and after decision.

   There is nothing either detrimental or advantageous in the respondents conduct. 

   (d)Respondent’s good faith.

   There is nothing for or against in terms of good faith.

   (e)Has the respondent a defence on the merits (triable issue).

   The contract in question and in particular the hand written terms of that contract would suggest there is a triable issue as to whether the terms support an obligation to pay as asserted in the initiating application or whether the contract was terminated with no obligation for further payment.  A prima facie defence is evident.

   (f)Whether the applicant would be irreparably prejudiced if the default decision was set aside.

   There is nothing about the application that suggests prejudice would ensue if the default decision was set aside.  It is a minor debt claim but not one of major significance in the applicant’s operations.  There is nothing to suggest that a delay in the adjudication of this application would have any significant detrimental effect on the applicant’s operations.

2. In summary, the criteria for determining whether the default decision should be set aside have been largely satisfied.

Orders

1.     The default decision entered 26 April 2013 is set aside.

2.     The respondent shall file and serve its response within 28 days.

3.     The application shall thereafter, subject to any directions, be set down for hearing.