Young Real Estate v Jung
[2013] QCAT 603
| CITATION: | Young Real Estate v Jung & Anor [2013] QCAT 603 |
| PARTIES: | Yong Real Estate (Applicant) |
| v | |
| Soon Won Jung & Shan Liu (Respondent) |
| APPLICATION NUMBER: | MCDO131/12 |
| MATTER TYPE: | Other minor civil dispute matter |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 11 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The default decision entered 10 December 2012 is set aside. 2. The respondents Soon Won Jung & Shan Liu file a response to the application within 28 days of this date. 3. The application be relisted for hearing promptly. 4. The application for legal representation by the respondents is dismissed. |
| CATCHWORDS: | Default decision – criteria for setting aside default decision – failure to file a response – delay in bringing application to set aside – respondents conduct – prima facie defence on the merits – on balance fairness to each of the parties in the circumstances |
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 (QCAT Act).
REASONS FOR DECISION
By application for minor civil dispute – minor debt filed 19 January 2012 Yong Real Estate (Yong), a licensed real estate agent, sought $16,802.50 as commission payable on the sale of the respondents property at 16 Freycinet Place, Calamvale on 14 December 2011 for $595,000.00. The applicant claimed as exclusive agent it was entitled to commission even though the property had been sold by another agent LJ Hooker.
The application was served on 28 August 2012. The request for decision by default was made 17 October 2012 with the default decision being entered on 10 December 2012.
The respondents Messrs Jung & Liu in their reopening application set out a chronology of events which amounted to, on their assertion, misleading, deceptive and unconscionable conduct on the part of the applicant Yong. Messrs Jung & Liu initially entered into an agreement with LJ Hooker to act as selling agent in the sale of their property 16 Freycinet Place, Calamvale. Shortly after that event on about 31 October 2011 Yong approached Jung and Liu seeking to be made selling agent for the sale of the Calamvale property. According to Messrs Jung & Liu Yong indicated that the documentation signed with LJ Hooker as selling agent was invalid and that therefore they were in a position to proceed with Yong as selling agent. Subsequently LJ Hooker introduced the purchaser and it was this purchaser who eventually signed a contract and settled the purchase of the property.
Mr Jung asserted he had advised both Yong and LJ Hooker through their representatives that he and Ms Liu wanted to ensure that there were no issues arising with Yong out of this train of events i.e. in particular that there would be no double commission payable. Ms Seo from LJ Hooker allegedly represented to Jung & Liu that if there was any claim from Yong then LJ Hooker would deal with it and resolve any such matter. Being reassured by LJ Hooker that no double commission would be payable Messrs Jung & Liu executed the sale of the contract.
Messrs Jung & Liu further asserted that they were under the impression that the appointments of agent with both LJ Hooker and Yong were for “an open listing”; that they were unaware that the appointments of Yong and LJ Hooker were exclusive agencies.
Mr Jung stated that in or about late August 2012 he received some legal documentation. He contacted LJ Hooker which collected the documentation (application for minor civil dispute) advising Mr Jung that they, LJ Hooker, would “deal with and resolve it”. Mr Jung asserted that he did not hear back from either LJ Hooker or Yong any further. Messrs Jung & Liu asserted that Yong’s conduct was misleading, deceptive and unconscionable. They say that they were not aware of any default decision until receiving a letter from a company advising that they were able to assist with the “judgment debt”.
In considering whether to set aside a default decision a number of considerations need to be taken into account. These were all summarised by His Honour Shanahan DCJ in Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd (2000) QDC 314 at 11.
These are as follows:
a)Is there a good reason why the respondent failed to file a response? In this instance the conduct of Messrs Jung & Lui seems reasonable in that given the circumstances of two agents being involved and the assertion that LJ Hooker would deal with legal documentation served.
b)Delay by the respondents when bringing the application to set aside. There has been a delay of some 9 months in this instance. However given the circumstances that Messrs Jung & Lui thought that LJ Hooker was handling matters it is not surprising that no further action was taken by them. They assert their first knowledge of being aware of the default decision was when they received a letter from a company advising that they might be able to assist with the judgment debt. The delay in those circumstances is not unreasonable.
c)The respondents conduct before and after the entry of the default decision and the defendants good faith. There is nothing in or about the conduct of Mr Jung and Ms Liu that is dilatorily or deficient. On their assertion they have shown good faith.
d)Whether the respondents have raised a prima facie defence on the merits i.e. triable issues. The chronology of the events raised by Messrs Jung & Lui set out in their reopening application makes it clear that there is a prima facie defence; not only that allegations made are of a serious nature. On the material placed before the Tribunal the Tribunal is satisfied that prima facie defence has been established.
e)Whether the applicant would be irreparably prejudiced if the default decision were to be set aside. The minor civil dispute – minor debt jurisdiction is a no cost jurisdiction. There is no issue of costs in this jurisdiction. There is nothing to suggest the applicant would be irreparably prejudiced if the default decision was set aside and the application proceed to hearing in due course.
Taking all the above factors into account it is clear that the application ought to be reopened in the interests of justice; that the respondents Messrs Jung & Lui file a response to the application and that the application be set for hearing promptly.
Orders
The default decision entered 10 December 2012 is set aside.
The respondents Soon Won Jung & Shan Liu file a response to the application within 28 days of this date.
The application be relisted for hearing promptly.
A further application for legal representation has been made by Messrs Jung & Liu. It is asserted that there is a question of law here. There is nothing about the circumstances of this particular application that identifies complex issues of law. The application and response to date centres on the conduct of the parties in or about the sale of real estate. There is no other matter or thing that suggests that legal representation ought be allowed here. It is suggested that Messrs Jung and Liu have limited spoken and written English. That can be properly addressed by the presence of an interpreter. The application for legal representation is therefore dismissed.
Further order
The application for legal representation by the respondents is dismissed.
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