Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Infocus Securities Australia Pty Ltd v Florence[2016] QCAT 245

Infocus Securities Australia Pty Ltd v Florence[2016] QCAT 245

CITATION:

Infocus Securities Australia Pty Ltd v Florence [2016] QCAT 245

PARTIES:

Infocus Securities Australia Pty Ltd

(Applicant)

v

Paul Florence

(Respondent)

APPLICATION NUMBER:

MCDO1049-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

9 June 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Alan Walsh

DELIVERED ON:

9 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The request for a decision by default filed on 7 June 2016 is refused.
  2. The application is to be listed for hearing on a date to be advised.

CATCHWORDS:

MINOR DEBT APPLICATION – INDEMNITY CLAIM - request for default decision refused – exercise of discretion on interlocutory application

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 50

Total Transport Corporation v Arcadia Petroleum (The Eurus) [1998] 1 Lloyd’s Rep 351

APPEARANCES:

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

  1. [1]
    The Applicant has requested written reasons for my decision on 9 June 2016 refusing its’ request for a default decision and directing that the matter be listed for a hearing. The Respondent did not file a Response. The Tribunal file had been referred to me on the papers for directions.
  2. [2]
    The proceedings are listed for hearing before an Adjudicator other than myself on 3 August 2016 as is appropriate having regard to the availability of Adjudicators for hearings in Brisbane from time to time and because the claim is not part heard by me on the merits.
  3. [3]
    Section 50 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) confers a discretion to make a default decision which is to be exercised bearing in mind the Tribunal’s efficiency objective in s 3(b); and its’ functions in s 4(c) which include ensuring that proceedings are to be conducted in a way that minimises costs to parties and are as quick as is consistent with achieving justice.
  4. [4]
    I concluded that it would not be consistent with achieving justice that a default decision be made without a hearing in the following circumstances.
  5. [5]
    The Applicant’s minor debt claim is limited to $25,000 of a $40,000 insurance excess paid by the Applicant to pre-emptively settle a claim for damages for allegedly negligent advice of the Respondent brought against the Applicant by former clients of the parties. It is not clear whether the Respondent was consulted before the settlement agreement with the aggrieved former clients was reached. No defence is raised that the settlement was unreasonable. The Respondent is apparently now impecunious.
  6. [6]
    Strictly speaking, the claim does not arise in debt though the form of application is one for a minor debt. Rather, it arises pursuant to an indemnity in a Deed of Agreement between the Applicant, the Respondent and his company, Days Off Pty Ltd, which company is not a party to the proceedings. Query whether it should be, given the terms Recital D of the tripartite Deed and the guarantee and indemnity in Clause 11.1 of the related Corporate Authorised Agreement.
  7. [7]
    The indemnity is expressed to be against any loss or damage which may be sustained or incurred either directly or indirectly as a result of the conduct or omissions of the Respondent in the course of providing financial services and advice. It is, both by its’ nature and as a matter of law, to be construed strictly. Its’ meaning and implication must be determined by a consideration of all the relevant facts and circumstances.[1]
  8. [8]
    That alone is a sufficient basis to decline the request for a default decision and direct a hearing as I did. But there are other considerations to which the Adjudicator hearing this matter may also have regard, including whether the claim is in fact a liquidated one or whether there are any limitations on what may be recoverable such as, for example, remoteness of loss or damage indemnified against if that is an issue on the proper construction of the indemnity.
  9. [9]
    The Respondent, who has been given notice of the hearing on 3 August 2016 at Brisbane, may wish to be heard by telephone on these and any other issues though, equally, he may decline to participate for financial reasons as is his prerogative. Nevertheless, the onus remains with the Applicant to prove its’ case.
  10. [10]
    I confirm the orders made on 9 June 2016.

Footnotes

[1] Total Transport Corporation v Arcadia Petroleum (The Eurus) [1998] 1 Lloyd’s Rep 351; [1997] Int.Com.LR 11/18.

Close

Editorial Notes

  • Published Case Name:

    Infocus Securities Australia Pty Ltd v Florence

  • Shortened Case Name:

    Infocus Securities Australia Pty Ltd v Florence

  • MNC:

    [2016] QCAT 245

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    09 Jun 2016

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.