JS Salmon Pty Ltd v SPMA ALFA Trust
[2018] QCAT 378
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- Unreported Judgment
- JS Salmon Pty Ltd v SPMA ALFA Trust[2018] QCAT 378
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JS Salmon Pty Ltd v SPMA ALFA Trust[2018] QCAT 378
JS Salmon Pty Ltd v SPMA ALFA Trust[2018] QCAT 378
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | JS Salmon Pty Ltd v SPMA ALFA Trust [2018] QCAT 378 |
PARTIES: | JS SALMON PTY LTD (applicant) |
| v |
| SPMA ALFA TRUST (respondent) |
APPLICATION NO/S: | MCDO60740/18 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 16 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Griffiths |
ORDERS: | The Respondent’s Application to Set Aside a default decision made on 5 September 2018, is refused. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – Minor Civil Dispute – Application to Set Aside a Default Decision – where default decision regularly entered – where Respondent failed to file a Response – where no adequate reason for failure to file a Response – where other factors considered Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50, s 51 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 45 Uniform Civil Procedures Rules 1999 (Qld), r 290 Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Self-represented |
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]On 4 April 2018, the Applicant filed an Application for minor civil dispute – minor debt. The claim was for monies owing for an unpaid invoice for storm water pumps and pump-out lines to remedy flooding at a commercial site owned by the Respondent.
- [2]On 2 May 2018, the Respondent received the Application.
- [3]On 21 June 2018, the Applicant filed an Application for Miscellaneous Matters, which sought an order for the Respondent to produce documents. It appears there were some delays or miscommunications about the time for submissions from the Respondent. In any event, the Respondent made submissions on 25 July 2018. An Order made on 30 July 2018, refused the application for the Respondent to produce the documents.
Default Decision
- [4]On 5 September 2018, the Applicant filed a Request for decision by default.
- [5]Section 50 of the QCAT Act sets out the requirements for a decision by default for a debt. This section applies if a person has applied to the tribunal to recover a debt or liquidated monies from a respondent, and the respondent did not file a response to the application within the time specified by the rules.
- [6]Rule 45 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) provides that if a respondent wishes to respond to an application, then the response must be made within 28 days after receipt of the application; be in the approved form; and, attach a statement answering the applicant’s claims. The respondent must also send a copy of the response to the Applicant.
- [7]As the Respondent received the Application for minor debt on 2 May 2018, a response should have been filed on or before 30 May 2018.
- [8]The Respondent did not file a response by 30 May 2018.
- [9]The Respondent did not file a response any time in the following three months.
- [10]On 5 September 2018, a Default Decision was made on the grounds that the application for minor debt had been served on the Respondent, no response to the Application had been filed by the Respondent, and the relief claimed by the Applicant was unsatisfied. The amount of the Default Decision was for $22, 266.91 including costs and interest.
Respondent’s Application to set aside default decision
- [11]On 11 October 2018, the Respondent filed an Application to set aside a default decision.
- [12]The Respondent’s reasons for not providing a response to the claims, include the following:
- (a)a letter sent to the Applicant on 12 April 2018 [which disputes liability and seeks proposals from the Applicant to rectify the works];
- (b)a subsequent site survey and a hydrographic survey on site, which confirm the pumps and pump-out line supplied by the Applicant were inadequate to deal with storm water expected into the drainage pit or water run-off from the roof of an adjacent building;
- (c)the solution supplied by the Applicant was not fit for purpose; and,
- (d)
- (a)
- [13]The Respondent sent further reasons attached to an email of 11 October 2018, which had been omitted from their application to set aside the default decision. It includes submissions about some confusion concerning the time for a response to the Application to produce documents, and a time for response to the original application. The further submission includes the following statements:
As you can see, the terminology ‘in respect of this latest application’ led the respondent to believe that a response was required to the form 40 application, not the form 3 application. As such, the respondent was awaiting notification of a date for the matter to be heard and responses to be provided. This resulted in a response to the original application (not the latest application) not being submitted in the required timeframe, and we therefore request the decision be set aside and reheard taking the respondents submission into account.
Applicant’s submissions to Respondent’s application
- [14]On 15 October 2018, the Applicant sent an email attaching a letter of the same date, containing submissions in reply to the Respondent’s application to set aside the default decision. Some of the attachments referred to in the letter of 15 October 2018 could not be identified in the bundle of documents included.
- [15]The Applicant’s submissions include the following:
- (a)there is a dispute concerning the assertions made by Respondent regarding liability for the claim, and the effect of the Respondent’s proposed remedial works;
- (b)no other works have been carried out on the site since the Applicant completed the works in February 2018;
- (c)the Respondent has the skills and capability to have filed a response within the time frames;
- (d)if the Respondent had a credible case, then it had an opportunity to file a response; and,
- (e)the Respondent’s application is an attempt to delay and avoid payment of the claim.[2]
- (a)
Decision not to grant Respondent’s Application to set aside a default decision
- [16]Section 51 of the QCAT Act provides that a tribunal may set aside a decision by default on terms the tribunal considers appropriate
- [17]On 18 October 2018, a decision was made not to grant the Respondent’s application to set aside the default decision.
- [18]In making that decision, various factors require consideration.
- [19]One factor was whether the default decision was regularly made. An examination of the tribunal’s records in this case, as indicated at paragraphs [4] – [10] above, reveal no defect or irregularity in the process or grounds for the default decision.
- [20]Rule 290 of the Uniform Civil Procedure Rules 1999 (Qld), which applies in the civil jurisdiction of Queensland Courts, is authority for setting aside default decisions in those jurisdictions. The terms of Rule 290 are similar to Section 51 of the QCAT Act.
- [21]In Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 at [28], six factors were identified as relevant considerations for the purpose of making a decision as to whether or not a Court should set aside a default decision under Rule 290. These factors are relevant to a decision under Section 51 of the QCAT Act.
- [22]The following headings list each factor (as amended to accommodate QCAT legislation and references), and the considerations given to those factors.
Whether there is good reason why the Respondent failed to a file a response to the Application
- [23]The Respondent has not provided a good reason for not filing a response within 28 days from the date the Application was received on 2 May 2018. The Response should have been filed on or before 29 May 2018.
- [24]On the front page of the Form 3 Application for minor civil dispute – minor debt, which was served on the Respondent, is a large shaded box titled: ‘Warning to Respondents’. The warning is that the Respondent must file a response within 28 days after receiving the Application; otherwise, the Applicant may apply for a default decision. The terms of the warning would have been apparent to the Respondent.
- [25]There is also further information available to the Respondents about the filing of a Response on the QCAT web site, and by phone.
- [26]The Respondent must take responsibility for pursing its own defence. There is no requirement for QCAT or the Applicant to chase the Respondent to file a response.
- [27]The Respondent’s explanation about a confusion concerning the requirements for a response to the Application Form 3 and the response to subsequent Application Form 40 to produce documents, lacks substance. The Respondent’s response to the Application Form 40 to produce documents does not suggest a confusion about its purpose.
- [28]The Applicant did not apply for a default decision until 5 September 2018. The Respondent could have filed a Response after the first 28 days expired (with leave of the Tribunal), at any time during the three months up to the date of the default decision. In total, the Respondent had four months within which to file a Response, and did not do so.
Whether there has been any delay by the Respondent in bringing the application to set aside the default decision
- [29]The Respondent’s Application to set aside the default decision was made on 11 October 2018. There was no delay in bringing the application.
The Respondent’s conduct in the action before and after the default decision
- [30]The Respondent’s response to the Applicant’s Application Form 40 to produce documents, was prompt and thorough. The Respondent was also prompt in making an Application to set aside the default decision.
- [31]However, as stated above, the Respondent ought to have known that a Response was required to the Application Form 3 because there is a warning notice on the front cover of the form about the requirement to file a Response. The Application form clearly states what action the Respondent was required to take, and the consequences for failing to do so. No reasonable explanation has been offered by the Respondent as to why no action was taken to file a response to the Application for four months.
The Respondent’s good faith
- [32]The Applicant says that the Respondent’s application to set aside the default decision is ‘nothing more than an attempt to delay or avoid payment’ and that the Respondent has ‘no real interest in working … to solve the issues and [is] only buying time.’[3] The Applicant further says that ‘detailed specifications, solutions and an action plan to meet their new set of expectations’[4] were provided to the Respondent.
- [33]The Respondent’s Application to set aside the default decision refers to its letter of 12 April 2018, which addresses the issues in dispute, and proposes resolution and negotiation with the Applicant. Also, Respondent says that since the letter, it has carried out a site survey and hydrographic survey, which confirm the works carried out by the Applicant were inadequate. However, the Applicant says the solutions offered by the Respondent require consultant engineers, and cannot be carried by the Applicant. Further, that the solutions may not meet council requirements.
- [34]In any event, the Respondent, by doing nothing in response to the application served on it on 2 May 2018, has not demonstrated good faith in dealing with the claims.
Whether the Respondent has raised a prima facie defence on the merits (raising triable issues)
- [35]The Respondent has a prima defence to the Application filed 4 April 2018. The Respondent’s letter to the Applicant dated 12 April 2018 (before the Application was served on 2 May 2018) sets out a defence to the issues. In summary, the defence is that the drainage works carried out by Applicant did not remove the stormwater from the site, and remedial work is required.
Whether the Applicant would be irreparably prejudiced if the decision is set aside which cannot be adequately compensated by a suitable award of costs
- [36]Consideration of the claims and response from the Applicant indicate there would be no irreparable prejudice to the Applicant if the decision was set aside.
- [37]However, the disputed works were completed in February 2018, and setting aside the default decision may result in further delays in hearing and deciding the Applicant’s claims. An order for costs to the Applicant is limited to the filing fee.
Conclusion
- [38]All the factors relevant to a decision to set aside the default decision have been considered. In the circumstances of this case, the failure of the Respondent to file a response within the 28 days specified, or at any time (with leave) during the three months before the date of the default decision, is the most significant factor.
- [39]The decision is not to grant the Respondent’s Application to set aside the default decision made on 5 September 2018.