Zhao v Chiu
[2012] QCATA 207
•23 October 2012
| CITATION: | Zhao and Anor v Chiu [2012] QCATA 207 |
| PARTIES: | Xiao Qun Zhao Xaing Li Huo (Applicants) |
| v | |
| Miguel Chiu (Respondent) |
| APPLICATION NUMBER: | APL109-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 23 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Decision by default – whether application to set aside dismissed – where proper exercise of discretion – no error demonstrated or apparent Queensland Civil and Administrative Tribunal Act 2009, s 142(3) House v R (1936) 55 CLR 499 |
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
The applicant and the respondent entered into a service agreement on 29 January 2011 whereby the respondent agreed to represent the applicant in a compensation claim against the Department of Transport and Main Roads to resume the property at 2 Grout Street, MacGregor. It was agreed that the applicant would pay a 2% professional fee calculated on the first settlement by the Department in the sum of $500,000.00. The respondent says there was an outstanding amount owing of $11,000.00.
The applicant failed to pay the amount owing and the respondent commenced proceedings in the minor civil disputes jurisdiction on 4 January 2012.
Because the applicant failed to file a response to the claim within the required 28 day period the respondent applied for a decision by default. On 17 February 2012 an order was made that Mrs Xiang Li Huo and Mr Xiao Qin Zhao pay Miguel Chiu the sum of $11,000 for the claim and $265.00 for costs.
In response to this decision the applicant filed an application to have the default decision set aside on 21 February 2012. That application was considered by a Tribunal Member and was dismissed. From that decision the applicants filed an application for leave to appeal or appeal. The grounds of appeal are:
a)The contract entered into between the parties was unconscionable as the terms of the contract were ambiguous.
b)The “business advice fee” payable to the respondent under the agreement was unreasonable and not reflective of the work done.
c)Clause 2 of the contract was not satisfied thus resulting in a breach of contract.
d)There was an oral misrepresentation made by the respondent about the amount of compensation that was payable to the applicant in the sum of $900,000.00 which lead to entry into the contract.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.[1] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
[1] QCAT Act, s 142(3).
The tribunal may set aside or amend a judgement by default upon application. There is no dispute that the applicants were served with the application and the Tribunal has jurisdiction to determine the claim as a minor civil dispute therefore the default decision was regularly entered. In deciding whether to set aside a regularly entered judgment there are two matters that need to be considered when deciding if a default decision should be set aside where it was regularly entered. Firstly whether there is a satisfactory explanation for the failure to lodge a response and whether there is a defence on the merits. These matters were considered by the learned Member in deciding whether to set aside the decision.
It is immediately apparent that the grounds of appeal go to the substance of the defence to the respondent’s claim rather than identify any error on the part of the learned Member in the decision under appeal. The submissions filed in support of the appeal also address, in detail, the substantive matters in defence of the claim including: uncertainty of the terms of the agreement; ambiguity of the 2% of the total compensation; the fact that the fee was estimated not fixed; the format of the fee agreement and finally the representation that the value of the compensation would be significantly more. None of these matters address the principles involved in whether the learned Member fell into error or whether there is a sufficient ground to grant leave to appeal.
Independent of the submissions of the applicants I have been unable to identify any basis upon which leave to appeal should be granted as no error is apparent from the material. The decision not to set aside the default decision is an exercise of discretion and unless the learned Member acted on a wrong principle, allowed extraneous matters to affect the decision or not take into account a material consideration the exercise of discretion will not be interfered with.[2] This is so even if I might come to a different view.
[2] House v R (1936) 55 CLR 499.
For these reasons the leave to appeal should be refused.
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