Warren v Goldberg - [2018] QCATA 83

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Warren v Goldberg [2018] QCATA 83

PARTIES:

DANIAL QUENTIN WARREN
(appellant)

v

STEVEN GOLDBERG

(respondent)

APPLICATION NO/S:

APL150-17

ORIGINATING APPLICATION NO/S:

MCD52431/16

MATTER TYPE:

Appeals

DELIVERED ON:

11 June 2018

HEARING DATE:

15 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

1.   Application for leave to appeal allowed;

2.   Appeal allowed;

3.   Set aside the decision of 6 February 2017 to refuse the application to set aside the decision by default of 11 January 2017; and

4.   Transfer the application to the building list.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – application for leave to appeal – minor civil dispute – default judgment – setting aside – where application for minor debt or liquidated demand – where applicant obtained default decision – where application to set aside default decision – where argument that application not in respect of debt or liquidated demand – whether error in refusing application to set aside default decision – whether application properly a building dispute

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 12, s 50, s 50A , s 51, s 142, s 146

Financial Advisers Australia v Mooney & Anor [2016] QCATA 181
Garland v Butler McDermott Lawyers [2011] QCATA 151
Howard v Smith [2014] QCATA 103
Ogdens Ltd v Weinberg (1906) 95 LT 567
PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33
Spain v Union Steamship Co of New Zealand Ltd (1932) 32 CLR 138

Tow.com.au Pty Ltd v Moffatt & Ors [2017] QCATA 55

APPEARANCES & REPRESENTATION:

Applicant:

I Martin, solicitor of Reichman Lawyers

Respondent:

Self-represented

REASONS FOR DECISION

Mr Goldberg filed an application for a Minor Civil Dispute – Minor Debt against

Mr Warren in regard to certain invoices which he claimed were due and owing by

Mr Warren. The application made it clear that Mr Goldberg had engaged Mr Warren as a sub-contractor to carry out tiling works and noted that the Queensland Building and Construction Commission had provided correspondence confirming that he had participated in the Commission’s dispute resolution process and advised that he could now apply to the Tribunal.[1]
[1]Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(2).
The invoices were in the form of progress claims. The first, dated 23 April 2016, was in the amount of $17,165.00 made up of $9,000 for liquidated damages, $5,125 for accommodation, $879 for materials/misc., and $2,179 for repairs/rectification labour. The second invoice, dated 29 September 2016, in the amount of $2,929.00, was for rectification of defective waterproofing.
Mr Warren was required to respond to the claim.[2] He requested and was granted an extension of time to do so. When Mr Warren did not file his response within the further time allowed, Mr Goldberg filed an application for a decision by default which was granted in his favour.[3] It is made clear in the decision…

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 Warren v Goldberg

Details

AGLC: Warren v Goldberg [2018] QCATA 83
Case: [2018] QCATA 83
Decision Date: 11 June 2018

CaseChat Overview and Summary

The plaintiff, Warren, sought leave to appeal a decision of the Local Court that dismissed their application to set aside a default judgment. The defendant, Goldberg, had obtained a default judgment in a minor civil dispute involving a debt or liquidated demand. The primary judge found that the application to set aside the default judgment was not in respect of a debt or liquidated demand, and therefore dismissed the application. Warren sought to appeal this decision, arguing that the primary judge had erred in refusing to set aside the default judgment and that the application was properly a building dispute. The court was required to determine whether the primary judge had erred in dismissing the application to set aside the default judgment and whether the application was properly categorised as a building dispute.

The court found that the primary judge had erred in dismissing the application to set aside the default judgment. The court held that the application was in respect of a debt or liquidated demand, and therefore, the primary judge should have considered whether there were exceptional circumstances to set aside the default judgment. The court further held that the application was properly categorised as a building dispute, and therefore, it should have been transferred to the building list. The court found that the primary judge had failed to consider whether the application was properly categorised as a building dispute, and therefore, the decision to dismiss the application was flawed.

The court allowed the application for leave to appeal and allowed the appeal. The court set aside the decision of 6 February 2017 to refuse the application to set aside the decision by default of 11 January 2017. The court transferred the application to the building list, and the parties were directed to file further written submissions on the merits of the application. The court's decision highlights the importance of properly categorising applications and considering whether there are exceptional circumstances to set aside a default judgment.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed;

3. Set aside the decision of 6 February 2017 to refuse the application to set aside the decision by default of 11 January 2017; and

4. Transfer the application to the building list.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Warren v Goldberg [2018] QCATA 83
PARTIES:	DANIAL QUENTIN WARREN (appellant)
v
STEVEN GOLDBERG (respondent)
APPLICATION NO/S:	APL150-17
ORIGINATING APPLICATION NO/S:	MCD52431/16
MATTER TYPE:	Appeals
DELIVERED ON:	11 June 2018
HEARING DATE:	15 September 2017
HEARD AT:	Brisbane
DECISION OF:	Member Allen
ORDERS:	1. Application for leave to appeal allowed; 2. Appeal allowed; 3. Set aside the decision of 6 February 2017 to refuse the application to set aside the decision by default of 11 January 2017; and 4. Transfer the application to the building list.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – application for leave to appeal – minor civil dispute – default judgment – setting aside – where application for minor debt or liquidated demand – where applicant obtained default decision – where application to set aside default decision – where argument that application not in respect of debt or liquidated demand – whether error in refusing application to set aside default decision – whether application properly a building dispute Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 12, s 50, s 50A , s 51, s 142, s 146 Financial Advisers Australia v Mooney & Anor [2016] QCATA 181 Garland v Butler McDermott Lawyers [2011] QCATA 151 Howard v Smith [2014] QCATA 103 Ogdens Ltd v Weinberg (1906) 95 LT 567 PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33 Spain v Union Steamship Co of New Zealand Ltd (1932) 32 CLR 138 Tow.com.au Pty Ltd v Moffatt & Ors [2017] QCATA 55
APPEARANCES & REPRESENTATION:
Applicant:	I Martin, solicitor of Reichman Lawyers
Respondent:	Self-represented