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  4. Jamb Motorco Pty Ltd (t/a Riders Motorcycle Garage Noosa) & Anor v David Adams) - [2023] QCAT 412

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Jamb Motorco Pty Ltd (t/a Riders Motorcycle Garage Noosa) & Anor v David Adams)[2023] QCAT 412

Jamb Motorco Pty Ltd (t/a Riders Motorcycle Garage Noosa) & Anor v David Adams)[2023] QCAT 412

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION

Jamb Motorco Pty Ltd (t/a Riders Motorcycle  Garage Noosa) & Anor v David Adams & Anor) [2023] QCAT 412

PARTIES:

jamb motorco pty ltd (t/a RIDERS MOTORCYCLE GARAGE NOOSA) & Anor

(applicants)

v

david aDAMS & anor

(respondents)

APPLICATION NO/S:

RSL 157-21

RSL092-21

MATTER TYPE

Retail Shop Leases matter

DELIVERED ON:

29 May 2023

HEARING DATE:

12 May 2023

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

Mr N Judge

Mr D McBryde

ORDER:

The application filed on 23 June 2021, numbered RSL092-21, and the application numbered RSL 157-21 are dismissed.

CATCHWORDS:

LANDLORD AND TENANT –  RETAIL  AND COMMERCIAL TENANCIES LEGISLATION –  applicant’s failure to appear on trial – adjournment and satisfactory explanation for absence sought – no satisfactory explanation – proceedings dismissed

District Court of Queensland Act 1967 (Qld) s 68

Queensland Civil and Administrative Law Act 2009 (Qld) s 93, Practice Note 1 of 2023 s 4, s 11, s 12

Retail Shop Leases Act 1994 (Qld) s 103

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

Sali v SPC Ltd (1993) 67ALJR 841

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

APPEARANCES & REPRESENTATION

The applicant did not appear

For the respondents: D Adams

Introduction

  1. [1]
    In 2021 the applicant company (‘Jamb’) conducted a used motor cycle dealership at Noosaville trading as ‘Riders Motorcycle Garage Noosa’ in premises leased from the respondents (‘Adams’).  The proprietor of the business was the second applicant, Damien Martin Blakey (‘DMB’), Jamb’s guarantor.
  2. [2]
    In or about May 2021 disputes arose between the parties, Adams alleging that Jamb was in arrears of rent and outgoings, and Jamb complaining that Adams was repeatedly in breach of Jamb’s quiet possession, causing it serious losses of business, “irreparable reputational damage’[1] and necessitating a relocation of its premises from Noosaville to Coolum.

Proceedings commenced

  1. [3]
    On 23 June 2021 Jamb commenced these proceedings[2] on various grounds, some within the Tribunal’s jurisdiction and others clearly without, ambitiously claiming compensation and costs to the tune of $ 1,121,911.76[3] in a forum unable to grant monetary relief exceeding $750,000.[4]
  2. [4]
    However, for reasons that appear below it is not now necessary to enter into issues of jurisdiction on monetary or other causes of action. The present question is whether these proceedings should be dismissed for Jamb’s non-appearance at the trial.[5]
  3. [5]
    Jamb’s application first came before the tribunal on 16 July 2021. Certain interlocutory orders were then made, and the matter was adjourned for final hearing.

Applicant fails to appear

  1. [6]
    That hearing was fixed for 19 July 2023. The respondents, Mr and Mrs Adams duly appeared but there was no appearance by or for the applicants.

Opportunity to explain absence

  1. [7]
    Declining to strike the proceedings out forthwith, the tribunal ordered the absent applicants to provide, within 28 days, a satisfactory explanation for their non-appearance. Evidently this order was conveyed to the applicants without any communication failure.
  2. [8]
    In response these submissions were received: (i) affidavit of DMB filed 9 August 2023; (ii) affidavit of Vicki Maree Brown sworn 21 July 2023. Ms Brown was deputed by Jamb to represent it at the hearing, but she did not appear.

Reason for absence of applicant’s representative unsatisfactory

  1. [9]
    Brown’s explanation may be stated and considered shortly. She states that her absence was due to non-receipt of the usual notice of hearing issued by the registry. That is hardly surprising, because, as she admits[6], she changed her address for service without appropriate notice to the registry. 
  2. [10]
    Practice Direction 1 of 2023 provides:

Where possible, email will be used by QCAT in the giving of documents, including originating process, to parties or non-parties, rather than hard copy documents.[7]

Unless an Act expressly require otherwise provides, where the principal registrar is required to give notice to a notice recipient, the registrar may do so by emailing the notice the notice recipient at [his, her or its given] email address.[8]

  1. [11]
    A party or registered recipient who changes his or her address for service is required to notify the registry and other parties accordingly. See QCAT Rule 37, which is repeated in the relevant Practice Note.[9]
  2. [12]
    Brown does not dispute the fact that the registry issued a notice of hearing to her at her last address known to the registry. She was clearly in breach of her duty to keep her service address up to date. We find that her explanation for absence from trial is not satisfactory.

Reason for Applicant’s non-appearance rejected

  1. [13]
    DMB, Jamb’s alter ego, provides a more complex explanation for his (and therefore the company’s] absence. Like Brown, he implicitly admits that QCAT sent him the notice of trial, and further, that it did reach his and Jamb’s current email address for service. Those are links in the chain which, if not admitted, could readily be checked. But he disputes a final, and probably uncheckable link, namely that he became aware of the trial date in time. In an affidavit filed three weeks after QCAT questioned him about his absence, he claims that he discovered a computer error:

I looked back through my emails and could not locate it. I then checked my Spam [sic] emails and located it there.[10]

  1. [14]
    However, in the same affidavit he deposes that he told the inquiring registry officer on or about 19 July 2023 several times that he ‘had been following up with QCAT several times for a hearing date’. Were that the case, and particularly if DMB had observed the following direction, he would surely have been alerted, by one means or another, well in advance, to the date of trial:

Parties are expected to regularly check their email inbox for QCAT communications, that is at least every second business day.[11]                              

  1. [15]
    The ‘Spam box’ excuse depends solely upon the assertion of DMB. His admission in a statement filed on 7 January 7 2022[12] plainly goes to credit.  In the absence of corroboration we do not accept that excuse.
  2. [16]
    Serious and unjustified departures from normal procedure should not simply be waved through. The outright failure of Jamb’s representatives to show up at the trial prevented the tribunal from seeing and hearing Jamb’s case viva voce and deprived the respondents of an opportunity to cross-examine the witnesses for that case. Costs of the case, borne by the public purse, were thrown away, time that the tribunal could have spent on other cases in the queue was wasted, and at least one member of the tribunal attended at substantial personal expense.
  3. [17]
    We do not regard DMB’s explanation as satisfactory. Accordingly it is rejected.

Consideration and resolution

  1. [18]
    We respectfully adopt the observations of Alan Wilson J, a former President of QCAT,  in dismissing an application to overlook a default of appearance at trial:

It is common knowledge that [this] jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings. The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests.

The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences. A failure to attend in the circumstances advanced for the applicant here is not, in those contexts, a ‘reasonable excuse’ under QCAT Act, s 137(a).[13]

  1. [19]
    To the same effect is the joint decision of Wilson J and a Senior Member in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd.[14]
  2. [20]
    The High Court authorities referred to in Pot Man include Aon Risk Services Australia v Australian National University[15] and Sali v SPC Ltd.[16]. They stress that serious procedural errors and consequent expense and delay weigh on the public purse, prevent finality in litigation, and impose unfair delays upon others waiting in the queue.
  3. [21]
    For the reasons given above there will be an order that the applications of Jamb filed on 23 June 2021, numbered RSL092-21, and the application numbered RSL 157-21 are dismissed.

ORDER

The application filed on 23 June 2021, numbered RSL092-21, and the application numbered RSL 157-21 are dismissed.

Footnotes

[1]Statement of DMB filed 7.1.2022 page 3.

[2]Application RSL 157-21, Brisbane.

[3]Statement of DMB filed  7.1.2022 page 2.

[4]Retail Shop Leases Act 1994 (Qld) (‘RSLA’) s 103(1)(c); District Court of Queensland Act 1967 (Qld) s 68(1)(b)(iv), s 68(2).

[5]QCAT Act s 93(2).

[6]Affidavit of Vicki Maree Brown sworn 21 July 2023 paragraph 1.

[7]Paragraph 3.

[8]Paragraph 8.

[9]Practice Note 1 of 2023 paragraph 11(a).

[10]Affidavit of DMB filed 9 August 2023 paragraph 2.

[11]Practice Note 1 of 2023 paragraphs 4 and 12.

[12]Statement of JMB 7 January 2022 page 15, diary note dated 26 March 2021.

[13]The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at 9-10.

[14][2010] QCATA 69.

[15](2009) 29 CLR 175 at 217.

[16](1993) 67 ALJR 841 at 843-844.

Close

Editorial Notes

  • Published Case Name:

    Jamb Motorco Pty Ltd (t/a Riders Motorcycle Garage Noosa) & Anor v David Adams & Anor)

  • Shortened Case Name:

    Jamb Motorco Pty Ltd (t/a Riders Motorcycle Garage Noosa) & Anor v David Adams)

  • MNC:

    [2023] QCAT 412

  • Court:

    QCAT

  • Judge(s):

    Dr J R Forbes, Mr N Judge, Mr D McBryde

  • Date:

    29 May 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
1 citation
Jump To
Cite 1 - (2009) 239 CLR 175
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
2 citations
Jump To
Cite 1 - [2010] QCATA 69
Cite 2 - [2010] QCATA 69
Sali v SPC Ltd (1993) 67 A.L.J.R 841
2 citations
Jump To
Cite 1 - (1993) 67 A.L.J.R 841
Cite 2 - (1993) 67 A.L.J.R 841
The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
2 citations
Jump To
Cite 1 - [2011] QCATA 318
Cite 2 - [2011] QCATA 318

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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