Xu v Lauro

CITATION:

Xu v Lauro [2016] QCATA 22

PARTIES:	Yuyu Xu (Applicant/Appellant)
v
Mario Lauro (Respondent)

APPLICATION NUMBER:

APL460 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

1 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted

2. Appeal allowed

3. The decision dated 9 October 2015, to refuse to set aside a decision by default, is set aside.

4. The decision by default dated 7 September 2015, to the extent it relates to Yuyu Xu, is set aside.

5. The claim filed 30 April 2015, to the extent it relates to Yuyu Xu, is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – DECISION BY DEFAULT – where claim against two respondents – where no claim against second respondent except for request for information - where no responses filed – where tribunal entered decision by default – where application to set aside default decision – where application refused - whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 51

House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Pickering v McArthur [2005] QCA 294
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 s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mario Lauro is a carpenter/handyman. He did some work for Dante Interiors Gold Coast at the home of Yuyu Xu. Ms Xu was Dante’s client. Mr Lauro did not get paid, so he filed a claim against Ms Xu[1]. The tribunal dismissed that claim.
[1]Q113/15.
Mr Lauro filed another claim against Dante and Ms Xu. He wanted:
… payment from Dante Interiors for the above amount.
I am also seeking from Dante Interiors to supply the contract (indecipherable) Mrs Yu Yu Xu to verify if Mrs Yu Yu Xu has paid Dante Interiors work done by me.
Ms Xu did not file a response to that claim. Mr Lauro filed an application for a decision by default. The tribunal, exercising its administrative function, entered a decision that both Dante and Ms Xu pay Mr Lauro $2,069.
Ms Xu applied to set a side that decision. The tribunal dismissed her application.
Ms Xu wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[2] 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.[3]
[2]QCAT Act, s 142(3)(a)(i).
[3]Pickering v McArthur [2005] QCA 294 at [3].
Section 51 of the QCAT Act gives the tribunal power to set aside a decision by default. The factors relevant to that discretion include whether or not there is a good reason for the failure to file a response; any delay in bringing the application; Ms Xu’s conduct in the proceedings before and after the decision; her good faith; whether she has raised a defence on the merits; and whether Mr Lauro would be severely prejudiced if the decision was set aside, in a way which could not be adequately compensated by, say, costs[4].
[4]Garland and Anor v Butler McDermott Lawyers[2011] QCATA 151.
I will not interfere with the way the tribunal exercised a discretion unless it can be shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[5]. Just because I might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[6].
[5]House v The King (1936) 55 CLR 499, at 504.
[6]Lovell v Lovell (1950) 81 CLR 513.
I am satisfied that there was a clear misapplication of the discretion in this case. Ms Xu says she did not file a response because she thought the matter was finalised. There was only a short delay between the decision (made on 7 September 2015) and her application to set it aside (made on 30 September 2015). Ms Xu raised a defence on the merits.
Importantly, Mr Lauro will not be prejudiced by setting aside the decision because he sought no relief from her. The decision by default was rightly entered against Dante but Mr Lauro wanted nothing from Ms Xu except confirmation that she had paid Dante. Mr Lauro did not ask for an order that Ms Xu pay him the amount of his claim because he had already tried, and failed, to get the money from her.
Leave to appeal should be granted and the appeal allowed. The decision dated 9 October 2015, to refuse to set aside a decision by default, is set aside. The decision by default dated 7 September 2015, to the extent it relates to Yuyu Xu, is set aside. The claim filed 30 April 2015, to the extent it relates to Yuyu Xu, is dismissed.

In the matter of Xu v Lauro, the respondent, the dispute involved a claim against two individuals, Yuyu Xu and Lauro, for a minor debt. The matter was heard in the County Court of Victoria, Division 2. The appellant, Xu, sought to appeal a decision by default against him, which had been entered by the tribunal. The tribunal had declined an application to set aside the default decision, which was made when no responses were filed to the claim against Xu and Lauro.

The primary legal issue before the court was whether the appellant had demonstrated grounds for leave to appeal the tribunal's decision to refuse to set aside the default decision. The court needed to determine whether the appellant had shown a reasonable prospect of success on the appeal and whether there were any other compelling circumstances justifying the grant of leave to appeal. The court also had to consider whether the tribunal's decision to refuse to set aside the default decision was legally sound and whether it was just and equitable to set aside the decision by default in relation to Yuyu Xu.

The court found that the appellant had demonstrated a reasonable prospect of success on the appeal and that there were compelling circumstances to justify the grant of leave to appeal. The court held that the tribunal had erred in not setting aside the default decision in relation to Yuyu Xu as there was no claim against him except for a request for information. The court found that the tribunal had not considered the relevant evidence and had failed to exercise its discretion appropriately. The court concluded that it was just and equitable to set aside the decision by default in relation to Yuyu Xu and to dismiss the claim to the same extent.

Accordingly, the court granted leave to appeal, allowed the appeal, set aside the decision dated 9 October 2015, to refuse to set aside a decision by default, set aside the decision by default dated 7 September 2015, to the extent it relates to Yuyu Xu, and dismissed the claim filed 30 April 2015, to the extent it relates to Yuyu Xu.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established