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  • Unreported Judgment

Turner v Smith

 

[2020] QCATA 50

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Turner v Smith [2020] QCATA 50

PARTIES:

Matthew Turner

 

(applicant/appellant)

 

v

 

phillip smith

 

(respondent)

APPLICATION NO/S:

APL094-19

ORIGINATING

APPLICATION NO/S:

MCDO55-19 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

15 April 2020

HEARING DATE:

20 November 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the applicant filed minor debt proceedings in the tribunal claiming for the cost of work done painting a boat – where the respondent owner failed to file and serve a response within time – where default judgement was given against the owner – where the owner filed an application to set aside default decision – where that application was refused – where the owner filed an application for leave to appeal the decision refusing to set aside default decision – where no reasonable defence disclosed on the part of the owner – where the owner has a potential separate claim against the applicant

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3)

ACI Operations P/L v Bawden [2002] QCA 286

Auspex Property Research Pty Ltd v Morris [2019] QCATA 009

McDonald v Queensland Police Service [2017] QCA 255

Pickering v McArthur [2005] QCA 294

Spaulding v Law Institute of Victoria [2013] VSC 632

REASONS FOR DECISION

  1. [1]
    Mr Turner engaged Mr Smith to paint his 56 foot racing boat. Mr Smith did painting work and rendered a number of accounts and was paid.
  2. [2]
    He was asked to paint the top hull of the boat. He did and rendered an account for that for $7,500 on about 23 January 2019. Mr Turner paid him $1,500 but refused to pay the balance of $6,100.
  3. [3]
    Mr Smith brought minor debt proceedings in the tribunal claiming the outstanding $6,100. The claim was filed on 25 January 2019. Mr Smith himself served Mr Turner with the application for minor debt on 5 February 2019.
  4. [4]
    Mr Turner then had 28 days to file a response. He did not do that within time. On 6 March 2019 Mr Smith applied for and obtained a default decision against Mr Turner for the $6,100 claimed plus filing fee of $120.50.
  5. [5]
    On 21 March 2019 Mr Turner applied to the tribunal to set aside the default decision. That application came on for determination before an Adjudicator on 1 April 2019. The Adjudicator refused to set aside the default decision.
  6. [6]
    Mr Turner filed an application for leave to appeal the decision of the Adjudicator on 12 April 2019. Given this is an appeal from a decision made in the tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1] 
  7. [7]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations,[3] but these are primary. The mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the grant of leave to appeal.[4]
  8. [8]
    In his application for leave to appeal Mr Turner said he had three grounds of appeal:
    1. (a)
      His address noted in the application for minor civil dispute - minor debt was wrong;
    2. (b)
      28 days had not expired after he was served with the application before the default decision was given; and
    3. (c)
      He was waiting for repairs to be done to Mr Smith’s faulty work and all invoices for that gathered in before disputing the claim.
  9. [9]
    These were the same reasons he relied on applying to set aside the default decision.
  10. [10]
    The learned Adjudicator refused the application to set aside default decision. She gave short but adequate reasons for refusal. She said there was no reasonable excuse given by Mr Turner explaining why he failed to file a response. She said Mr Turner showed no reasonable defence to the claim by Mr Smith. She found the claim about the incorrect address an irrelevancy given he was served with the minor debt application personally.
  11. [11]
    The learned Adjudicator was clearly correct about the incorrect address being irrelevant to the failure to file a response within time. I note the application for minor civil dispute – minor debt carries a very obvious notice on the front stating that a response is required to be filed within 28 days of being given a copy of the application or a default decision might be given against the respondent.
  12. [12]
    Mr Smith had filed an affidavit of service deposing to personal service on Mr Turner on 5 February 2019. The period of 28 days subsequent to file a response expired on 5 March 2019. Mr Smith sought the default decision on 6 March 2019. The default decision was not obtained prematurely.
  13. [13]
    The only remaining potential ground of appeal is his claim that he was waiting for repairs to be done to the faulty work done by Mr Smith and all invoices obtained for that before disputing the claim.
  14. [14]
    Mr Smith refutes this assertion, not only that Mr Turner delayed filing a response because of this, but also the claim about defective work. Mr Smith maintains what prompted Mr Turner to take action and apply to have the default decision set aside was service on him by Mr Smith of a Bankruptcy Notice on 14 March 2019.
  15. [15]
    Mr Turner’s claim that he delayed filing a response to effect repairs and gather invoices is at odds with his statement at the hearing of the application for leave to appeal that the defects in Mr Smith’s work on the top hull only manifested itself after the default decision was handed down. Subsequently he corrected that statement to say Mr Smith’s work was always defective.
  16. [16]
    Mr Turner sought leave to adduce fresh evidence. The fresh evidence comprised video evidence and numerous photographs claimed to show defective work by Mr Smith. Leave to rely on one photograph of defective work in respect of the top hull was granted.
  17. [17]
    In making his application to set aside the default decision, Mr Turner had submitted four invoices for work done on the boat which he claimed was rectifying Mr Smith’s work. The first was dated 28 February 2019, prior to the default decision being made. The invoice concerned work done on the trailer, not the top hull. Work on the trailer formed no part of Mr Smith’s claim in the tribunal.  The other three invoices were dated after the default decision was given and mostly concerned work of general refurbishment of the boat and work on the trailer, not work on the top hull.
  18. [18]
    The invoices offer scant weight to Mr Turner’s claim that he delayed filing a response because he was obtaining invoices for costs of repairs, and most of that repair work had nothing to do with painting the hull. 

Counter application

  1. [19]
    Mr Turner has additional difficulties to contend with in obtaining leave to appeal. That his claim against Mr Smith for defective work appears to be a counterclaim is a significant obstacle.
  2. [20]
    There can be no counter application to a minor debt claim.[5] The counterclaim must be brought as a separate proceeding. Mr Turner’s claims against Mr Smith appear to constitute a counterclaim able to be brought or continued as a separate proceeding in its own right[6] and irrespective of the success or otherwise of the claim by Mr Smith.

Set-off

  1. [21]
    Mr Turner does raise an issue about the amount of Mr Smith’s claim. That was only raised in submissions late in the appeal proceedings on 3 June 2019 when he alleged Mr Smith was overcharging for his work. The claim about overcharging was general in the sense that it was not limited to the charge for the work done on the top hull but also for the charge for work done before that on the trailer. He claimed the agreed charge was a day rate of $500 rather than the hourly rate of $100 claimed by Mr Smith in the minor debt proceedings.
  2. [22]
    Potentially this might constitute a set-off rather than a counterclaim (which is no separate cause of action and ends if the applicant discontinues proceedings).
  3. [23]
    Leaving aside the issue whether the prohibition in the QCAT Rules against counterclaims in minor debt matters extends to set-offs, the issue about overcharging was not a matter raised in the application to set aside the default decision.
  4. [24]
    In support of his claim about overcharging Mr Turner says in his submissions that in fact he paid the excessive charges by Mr Smith for the trailer work as a matter of good faith on condition he (Mr Smith) fix numerous defects that had become evident. According to Mr Turner, Mr Smith claimed $4,500 more than he should have for the work on the trailer. He should have charged only $2,000 for that but claimed $6,500.
  5. [25]
    This claim about Mr Smith charging grossly excessive rates for both the work on the trailer and the top hull lacks credibility given Mr Turner paid for the work on the trailer - and then after that engaged Mr Smith to do the further work on the top hull.

Conclusion

  1. [26]
    Generally, on the material before her, the learned Adjudicator’s decision that no defence to Mr Smith’s claim was disclosed in the application to set aside default decision was more than reasonably open on the evidence presented to her.
  2. [27]
    Mr Turner seeks to resist Mr Smith’s minor debt claim by way of counterclaim for defective trade work. He is entitled to bring that claim against Mr Smith, but in separate proceedings in the tribunal. He was not entitled to raise it as a counterclaim in the minor civil dispute - minor debt proceedings brought by Mr Smith.
  3. [28]
    There is no reasonable argument that there was any error made in the decision of the learned Adjudicator refusing to set aside the default decision. Even if granted leave to appeal, there is no reasonable prospect of Mr Turner being successful in the appeal in any case.
  4. [29]
    Accordingly leave to appeal is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294 [3]; McDonald v Queensland Police Service [2017] QCA 255 [25].

[3]For example, if a question of law is identified that is of general or public importance: Spaulding v Law Institute of Victoria [2013] VSC 632 [28].

[4]ACI Operations P/L v Bawden [2002] QCA 286 per McPherson JA.

[5]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3).

[6]Auspex Property Research Pty Ltd v Morris [2019] QCATA 009 [40] referring to the explanation as to the difference between a counterclaim and a set-off given in Australian Civil Procedure, Bernard Cairns, Lawbook Co of Australasia, 6th ed. 2005, 210.

Close

Editorial Notes

  • Published Case Name:

    Matthew Turner v Phillip Smith

  • Shortened Case Name:

    Turner v Smith

  • MNC:

    [2020] QCATA 50

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    15 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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