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Airmech Property Pty Ltd v McCullough aka Takiwa[2023] QCAT 490

Airmech Property Pty Ltd v McCullough aka Takiwa[2023] QCAT 490

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Airmech Property Pty Ltd v McCullough aka Takiwa [2023] QCAT 490

PARTIES:

AIRMECH PROPERTY PTY LTD ACN 605970563

(applicant)

v

MICHELLE ANNE MCCULLOUGH aka MICHELLE TAKIWA

(respondent)

APPLICATION NO/S:

Q304/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

12 December 2023

HEARING DATE:

On the papers

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

DIRECTIONS

  1. To secure the effectiveness of the Tribunal’s jurisdiction for the proceeding and for the reasons in this decision, I direct pursuant to section 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) that the delegate of the Principal Registrar does not enter a default decision against the Respondent.
  2. Pursuant to section 32(3) of the QCAT Act, I direct that the public may have access to the matters disclosed in this proceeding to the same extent as if the proceeding had been heard before the Tribunal with in-person attendance of all persons involved.
  3. I direct that a copy of this decision and these reasons be placed on the Tribunal file.

ORDERS

  1. Pursuant to section 61(1)(c) and section 61(4) of the QCAT Act and subject to Order 6(b) hereof, I order that the requirement that the Respondent file a Form 7 Response to the Application for minor civil dispute – minor debt is dispensed with for the time being.
  2. Pursuant to sections 61(c), 62(1), 62(6), 62(7)(a) and 62(7)(b) of the QCAT Act and rules 3(1)(a) and 3(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) and for the fair and speedy conduct of the proceeding and to potentially end it early, I order that the emails of Michele Takiwa (aka McCullough) sent on 20 October 2023 and 7 November 2023 to Courthouse Southport stand as an interim Response to the Application.
  3. Pursuant to sections 58(1) and (2) of the QCAT Act, in the interests of justice and efficient management of the proceeding in circumstances where the Respondent is a resident of New Zealand, of my own motion I order as follows –
  1. The Applicant must on or by 4 pm on 3 January 2024 file with the Tribunal’s Southport Registry, and serve by email to the Respondent at the email address for her stated in the Form 3 Application for minor debt:
  1. An amended Form 3 Application and amended Annexure A setting out with reasons the facts (if any) relied upon if the Applicant asserts that the limitation period prescribed in the Limitation of Actions Act 1974 (Qld) has been extended to a date within 6 years of the date of filing the Application.
  2. All affidavits or statutory declarations of evidence supported by documents not already filed in the proceeding on which the Applicant wishes to rely in that regard.
  3. The Applicant’s further written submissions on the question of why the Form 3 Application should not summarily be dismissed on the limitation point.
  1. The Respondent must, within 30 days that in Queensland are business days, to be counted by excluding Saturdays and Sundays and any public holidays in Queensland, file with the Tribunal’s Southport Registry and email to the Applicant at its address stated in the Form 3 Application for minor debt:
  1. A completed Form 7 Response setting out her response to the amended Form 3 Application for minor debt and amended Annexure A referred to in Order 6(a)(i).
  2. All affidavits or statutory declarations of evidence supported by documents not already filed and served on which the Respondent wishes to rely in that regard.
  3. The Respondent’s further written submissions in response to the Applicant’s written submissions to be served in accordance with Order 6(a)(iii).
  1. The Respondent’s defence that the Application is statute barred be heard and determined first by an Adjudicator on the papers on a date after 23 February 2024.
  2. The Respondent’s right to make an interim application to the Tribunal that she could make under the provisions of the Trans-Tasman Proceedings Act 2010 (Cth) and the Trans-Tasman Proceedings Regulation 2012 (Cth) is unaffected by these Orders.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where applicant sues respondent for minor debt in contract of guarantee – where respondent a New Zealand resident – where applicant served respondent with application there – where no response filed – where default decision requested – where service irregular – where application filed more than 6 years after cause of action in debt accrued – where application time barred on its face – where request for default decision referred to adjudicator for directions – where directions and show cause orders made – where submissions filed – whether default decision should not be entered – whether proceedings within tribunal minor civil dispute jurisdiction

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – where extension of limitation period not asserted in reasons for application – whether assertion required – whether application and request for default decision may be filed – whether proceedings maintainable

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS AND TRIBUNALS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – whether application should be summarily dismissed – whether orders and directions should issue for amendment of application and reasons for application – whether orders should be made to effect regular service on respondent in compliance with commonwealth and state legislation – whether order for trial of limitation issue first and separately appropriate – whether respondents emails to the courthouse asserting particulars of defence should stand as interim response

Acts Interpretation Act 1901 (Cth), s 2B

Acts Interpretation Act 1954 (Qld), s 38

Limitation of Actions Act 1974 (Qld) s 7, s 9, s 10, s 11, s 12, s 13, s 14, s 15, s 23

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 32, s 47, s 50, s 58, s 61, s 62,

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

Retail Shop Leases Act 1994 (Qld), s 5A, s 5B,

Trans-Tasman Proceedings Act 2010 (Cth), s 7, s 9, s 10, s 11, s 12, s 13, s 14, s 15, s 23

Trans-Tasman Proceedings Regulation 2012 (Cth), s 3, s 4, s 5

Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471

Commonwealth v Mewitt (1995) 59 FCR 391

Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne [2018] QCATA 112

de Robillard v Lion Finance Pty Ltd [2013] QDC 274

Eastwood & Eastwood v Scenic Rim Council [2021] QDC 62

Glenister v Palazi & Anor [2015] QDC 281

Jackson v Redcliffe City Council and Lancefield [2008] QDC 254

Lynch v Rodgers Building Enterprises Pty Ltd [2020] QCAT 290

Pritchard v The Brisbane City Council and Anor [2020] QDC 189

Schofield v Schofield & Anor [2011] QDC 306

Tabaro v Ratakhin [2023] QCATA 143

REASONS FOR DECISION

Interim hearing on the papers

  1. [1]
    The Applicant’s application for a decision by default and a referral by the Deputy Registrar of questions for Tribunal direction are heard and determined on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  2. [2]
    The section provides that the Tribunal may if appropriate conduct all or a part of a proceeding entirely based on documents without the parties, their representatives, or their witnesses appearing at a hearing.
  3. [3]
    Section 32(3) provides that if the Tribunal conducts a hearing under subsection (2) then it must ensure (either that) the public has access to or is precluded from access to matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the tribunal with the attendance in person of all persons involved.
  4. [4]
    I will direct accordingly.

Application - for minor debt

  1. [5]
    Airmech Property Pty Ltd (‘Airmech’), an Australian Company carrying on business at Burleigh Heads on the Gold Coast of Australia, filed a Form 3 Application for minor debt on 2 June 2023 claiming payment in debt of $24,879.92, plus interest of $4,904.50, plus $367.00 for filing fee, plus a Citec fee of $457.10 for electronic filing - in sum $30,608.52.
  2. [6]
    Excluding interest and claimed costs, the claim is just below the Tribunal’s monetary limit of $25,000 and therefore within the Tribunal’s jurisdiction in that respect.
  3. [7]
    The facts relied on for the claim are set out in Annexure A to the Form 3 Application as follows. 
  4. [8]
    Airmech is the registered owner of a property which is Suite 3B, Mudgeeraba Professional Centre, located at 50-54 Railway Street, Southport, Queensland, and has been so registered since 16 November 2015.
  5. [9]
    In August 2009, a company incorporated and registered in Australia called ABG Pages Pty Ltd (‘ABG Pages’), as Trustee, entered a lease of the premises with another Australian incorporated and registered company, Propdev1 Pty Ltd (‘Propdev’), the proprietor of the premises at the time.
  6. [10]
    Ms McCullough on behalf of ABG Pages executed a Deed of Guarantee to Propdev guaranteeing payment by it of all rental and other monetary obligations and liabilities of the lessee. She is sued under that guarantee in this proceeding. On 31 October 2011, by Deed of Variation, the parties agreed to vary and extend the lease to 14 August 2017.
  7. [11]
    Upon becoming registered owner of the property on 16 November 2016, Airmech agreed to be bound by the lease as varied and extended, and the lease was assigned to it pursuant to clause 1.02 of the lease, as was the Deed of guarantee executed by Ms McCullough, by the definition of Lessor on page 2 of the Deed.
  8. [12]
    Clause 2.02 of the lease provided that rent payable by the tenant—that is, the base rent—must be paid by equal calendar monthly instalments in advance during the rental year of the term and any renewed term of the lease.
  9. [13]
    Clause 2.06 of the lease provided for payment of variable outgoings in each accounting period, in an amount equal to the lessee’s proportion of outgoings for that period.
  10. [14]
    Clause 3.10 of the lease provided that the lessee would be responsible for payment of all legal costs incurred by the lessor and…such costs resulting from the default by the lessee under the lease.
  11. [15]
    From 21 April 2016 to 21 January 2017, ABG Pages failed to pay the rent and outgoings to Airmech totalling $24,879.92, particulars of which appear in exhibit AP-6 to Annexure A to the Application.
  12. [16]
    The exhibit is a statement of account on letterhead of Bensted Superannuation Fund (A.B. N. 31 595 008 517) dated 20 February 2017, addressed to ABG Pages at an address in Gisborne, New Zealand.
  13. [17]
    It is unclear whether Airmech was (and is) Trustee of that Fund, but nothing turns on that for present purposes.
  14. [18]
    Of the amount owing for rent, $18,122.42 was more than 60 days overdue, $2,252.50 was 60 days overdue, $2,252.50 was 30 days overdue, and $2,252.50 was then current.

Jurisdiction

  1. [19]
    I find the following on the facts asserted, for purposes of this interim decision.
    1. Airmech’s cause of action in debt, referred to in Annexure A, is contractual in character.
    2. It arose wholly within South-East Queensland in Australia.
    3. Ms McCullough was domiciled in Queensland at the time.
    4. ABG Pages Pty Ltd had to pay Airmech the rent here.
    5. Ms McCullough had to pay the rent to Airmech here if ABG Pages failed to do so.
    6. The rent progressively owing was mostly overdue or due and payable on 21 January 2017.
  2. [20]
    The claim is within jurisdiction in those respects. However, on the face of it presently, the bringing (filing) of the application for the remedy is time barred for reasons I will explain in detail later.

Request for Default Decision

  1. [21]
    Airmech filed a Form 6 Request for decision by default with the Tribunal Registry at Southport on 31 August 2023, together with an affidavit of debt. It fell to be processed by the Deputy Registrar as delegate of the Principal Registrar.
  2. [22]
    A Request for a default decision is an application within the meaning of the Dictionary definition in Schedule 3 of the QCAT Act and section 50(1)(2) of the Act which expressly permits an Applicant to apply (my italicisation for emphasis) for a default decision.
  3. [23]
    A decision by default is a final decision, so an application for a default decision must be carefully considered by reference (amongst other things) to the date of service and the time meanwhile elapsed between the service and Request dates.  Also requiring careful consideration is whether there are any unfulfilled statutory requirements for service.

Respondent’s current domicile

  1. [24]
    Ms McCullough is a resident of New Zealand to which she permanently returned from Australia on 31 August 2016.[1]

Affidavit of service

  1. [25]
    Katherine Wallingford of Whataupoko in Gisborne, New Zealand, in an affidavit of service signed there, swears that she served Ms McCullough with the Form 3 Application for minor debt on 1 August 2023 at an address in Gisborne by giving her a copy that she “willingly accepted.”

Service - requirements

  1. [26]
    QCAT Practice Directions provide for service within Australia.
  2. [27]
    Commonwealth legislation regulates the service of Australian-originating processes in New Zealand. Prerequisites for proper service of Australian-originating processes on individuals in New Zealand differ from requirements for service in other overseas countries.

The TTPA

  1. [28]
    The Trans-Tasman Proceedings Act 2010 (Cth) (‘TTPA’) applies to service in New Zealand of court or tribunal-initiating processes issued in Australia.
  2. [29]
    Part 2, section 7 of the TTPA explains that it is about serving defendants in New Zealand with initiating documents for certain civil proceedings in Australian courts or tribunals, that it allows such service and provides how it must be done, that defendants must be given certain information when served with the initiating document, that an Australian court or tribunal may set aside the proceeding or any step taken in it if defendants are not given that information, that defendants must file an appearance in an Australian court or tribunal within a particular period after being served with the initiating document in New Zealand, and that in the appearance the defendant must state an address for service in Australia or New Zealand for the proceeding.
  3. [30]
    Section 9(2) of the TTPA says that the initiating document must be served in New Zealand in the same way required or permitted under the procedural rules of the Australian court or tribunal to be served in the place of issue. In terms of the Note to the section, no leave for service is required, nor is it necessary for the court or tribunal to be satisfied for service that there is a connection between the proceeding and Australia.
  4. [31]
    By section 10, service of an initiating document in New Zealand under section 9 has the same effect and gives rise to the same proceeding as if the initiating document had been served in the place of issue.
  5. [32]
    Section 11 of the TTPA requires that an in initiating document served under section 9 must (my emphasis) contain or be accompanied by information for the defendant that is prescribed by the regulations, which regulations must prescribe general information for the defendant about the steps the defendant must take in relation to the proceeding, and the consequences of the document being served on the defendant in New Zealand under section 9.
  6. [33]
    Section 12 of the TTPA provides that failure to comply with section 11 does not invalidate the proceeding or any step taken in it; however, the issuing Australian court or tribunal, on application within a reasonable time and before the defendant has commenced taking any step in the proceeding after becoming aware of the failure, may make an order in the terms it considers appropriate setting aside the proceeding or any step taken in relation to the proceeding.
  7. [34]
    By section 13, a defendant served with an initiating document in New Zealand under section 9 who wishes to file an appearance in the Australian court or tribunal must do so within the default period, which is the longer of 30 working days of the issuing court or tribunal after the day on which it was served, or the period within which the procedural rules of the initiating court or tribunal would have required or permitted the defendant to file an appearance if served in the place of issue; or if, before the end of the default period, the plaintiff or defendant applies to the issuing Australian court or tribunal for a shorter or longer period – any shorter or longer period the court or tribunal considers appropriate.
  8. [35]
    Section 14 of the TTPA provides that the defendant’s address for service of the proceeding is the address stated in the appearance or if, on application by the defendant, the court or tribunal directs that another address in Australia or New Zealand is to be the defendant’s address for service for the proceeding – that other address.
  9. [36]
    Section 15 of the TTPA permits a defendant to apply for security for costs, however given the limitation in QCAT on the amount of costs recoverable in the minor civil dispute jurisdiction it is not relevant.
  10. [37]
    Sections 16 to 22 in Part 3 of the TTPA deal with inconvenient forum situations and powers.
  11. [38]
    Section 23 provides for the suspension of limitation periods, but I will say no more for present purposes other than that it only applies in the situation where a claim is made in a New Zealand proceeding, where that proceeding is stayed by a court order there on grounds that an Australian court is the more appropriate court, and where the claim is made again in an Australian court after the staying and before any deadline stated in the condition of that order staying the New Zealand proceeding.
  12. [39]
    By section 23(2) of the TTPA, for purposes of every applicable limitation period or defence under Australian law, the Australian proceeding is to be treated as commencing at the time the New Zealand proceeding commenced.

The TTPR

  1. [40]
    The TTPA must be read together with the Trans-Tasman Proceedings Regulation 2012 (Cth) (‘TTPR’). The Regulation prescribes the Form (Form 1) to accompany an initiating proceeding issued in an Australian court or tribunal to be served in New Zealand on a New Zealand resident. See sections 3, 4 and 5.
  2. [41]
    It is unnecessary for present purposes to recite verbatim the content of the Form except for saying that it states the importance of carefully reading it, the consequences of the attached document, the rights to apply for the proceeding to be stayed, and what to do to contest the claim if required.
  3. [42]
    For completeness, I explain that a Form 2 is a Request for a hearing of a defendant’s application for a stay order and a Form 3 is a Request to appear remotely in the hearing of an application for stay of Australian civil proceeding. There are also other prescribed Forms numbered 4 to 6 that are not relevant to this decision.

QCAT Practice Directions

  1. [43]
    QCAT Practice Direction 1 of 2023 (‘PD 1’) and Practice Direction 8 of 2009 (updated 20 November 2013) (‘PD 8’) relating to service of process within Australia are relevant because section 9(2) of the TTPA says that service in New Zealand may be achieved in the same way required or permitted here – subject of course to attachment of the TTPA/TTPR Form 1 referred to earlier.

PD 1

  1. [44]
    PD 1 provides directions for service by QCAT emailing documents to parties rather than posting them where practicable whereas PD 8 of 2009 provides directions for service by one party of initiating process on another.

PD 8

  1. [45]
    Though her affidavit of service does not say so, it appears that Ms Wallingford served Ms McCullough in accordance with the requirements of PD 8 of 2009, which provides that personal service of a document on an individual in Queensland may be given in five different ways including (by Direction 2(a)) by giving a copy of the document to the individual in person.

Non-compliance with TTPA/TTPR

  1. [46]
    Ms Wallingford’s Form 9 Affidavit of service filed on 31 August 2023 reveals that the Applicant has not complied with the requirements of section 11 of the TTPA. It makes no mention of a Form 1 TTPR Notice accompanying the Application. No Form 1 is filed with the Tribunal.
  2. [47]
    The Form 1, had it been filed and served with the Form 3 Application for minor debt, would have informed the parties that the earliest a Request for default decision could be filed was 31 working days of the issuing tribunal (QCAT) after the day of service on Ms McCullough.
  3. [48]
    Service of the Application for minor debt occurred on 1 August 2023. The Request (application) for default decision was dated and filed on 31 August 2023, a period of 30 days including non-working days. It is necessary to understand what the term “working day” used in a TTPR Form 1 means.

The AIAC

  1. [49]
    Section 2B of the Acts Interpretation Act 1901 (Cth) (‘AIAC’) defines a “business day” as meaning a day that is not a Saturday, a Sunday or a public holiday in the place concerned. Surprisingly, “working day” is not defined, but the terms business day and working day are in my view synonymous.

The AIAQ

  1. [50]
    Section 38(1)(b) of the Acts Interpretation Act 1954 (Qld) (‘AIAQ’) on reckoning of time provides that if a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event and including the day on which the purpose is to be fulfilled.
  2. [51]
    In Schedule 1, “business day” means a day that is not a Saturday or Sunday, a public holiday, special holiday, or bank holiday in the place in which any relevant act is to be or may be done. Again, there is no definition of what a working day is.

The Calendar

  1. [52]
    The calendar for August 2023 in Queensland shows that 8 days in the month were either a Saturday or Sunday. A Wednesday was a public holiday in Brisbane for the Royal Queensland Show and the Gold Coast had a public holiday for the same event later in the month. The two public holidays are to be counted as one for present purposes.

Thirty working days – not elapsed

  1. [53]
    The period of 30 days between the dates of service and the Request for default decision therefore was short by 9 working days; only 21 business days had elapsed when the Request for default decision was filed.

Summary

  1. [54]
    In summary:
    1. The Respondent was not properly served.
    2. She was not informed that she had 30 working days in Queensland to file and serve a Response and the right to apply to the Tribunal for a stay order, and the right to appear remotely.
    3. 30 working days’ notice had not elapsed before the Applicant filed its Request for a default decision.
    4. The Request for default decision was filed prematurely.
    5. The Respondent has in any event articulated a limitation defence in the meantime.
  2. [55]
    The Request must be declined.

Registrar’s referral

Directions powers

  1. [56]
    Section 62(1) of the QCAT Act provides that the tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding and section 62(6) provides that the tribunal may act under this section on the application of a party to a proceeding or on the tribunal’s own initiative.
  2. [57]
    Section 62(7) provides that the Tribunal’s power to act under this section is exercisable only by the tribunal as constituted for the proceeding, or a legally qualified member, an adjudicator, or the principal registrar.

Referral

  1. [58]
    A Deputy Registrar’s referral came before me sitting on 9 October 2023 at Southport for consideration on the papers and directions.

Referral questions

  1. [59]
    The referral was in the following terms.

The Applicant is claiming for rental arrears for a commercial lease, that the debt became due on 21 January 2017 – more than 6 years before the Application was filed on 2 June 2023.

  1. Is the Applicant within time to make a claim?
  2. The debt relates to a commercial lease. Does QCAT have the jurisdiction to issue a decision for this debt?
  1. [60]
    The referral did not require that I consider the validity of service and whether the Request for a default decision was premature, but I have considered and dealt with that of my own motion to secure the effectiveness of the Tribunal’s jurisdiction.
  2. [61]
    The answers to the questions in the referral are as follows,

Answer to Question 2

  1. [62]
    Yes is the answer to question 2, for the following reasons.
  2. [63]
    The Tribunal in a decision of Tabaro v Ratakhin [2023] QCATA 143 (‘Tabaro’) by Member Lember succinctly set out the criteria for a retail shop lease at [8] to [9]. I respectfully agree with her statement of the criteria and incorporate them by reference in this decision.
  3. [64]
    On the evidence and applying the criteria in this case, the cause of action is a debt by guarantee of the performance of a tenant’s obligations under a commercial lease. It is not a retail shop lease within the meaning of the Retail Shop Leases Act 1994 (Qld) and the definitions in section 5A of “retail shop lease” and section 5B of “retail shop,” and the several other indicia identified in Tabaro. The Applicant’s Form 3 Application for minor debt is justiciable as a minor civil dispute and within jurisdiction as such.

Question 1 – Limitation

  1. [65]
    The threshold issue is whether the claim is statute barred and whether the issue ought to be tried first and separately, in order to potentially end proceedings early.
  2. [66]
    Courts in Queensland often take this approach on applications for summary dismissal of cases where limitation defences are raised in pleadings.
  3. [67]
    In Schofield v Schofield & Anor [2011] QDC 306, Farr SC DCJ at [51] said the following.

Accordingly, the provisions of s 35(3) of the Act are not enlivened. The limitation period for this matter ended in February 2004 and this complaint was not made within the required six years after the matter of complaint arose. The plaintiff’s claims in paragraphs 10 and 21 of the Statement of Claim are therefore statute barred pursuant to s 10 of the Limitation of Actions Act 1974 (Qld).

  1. [68]
    Other District Court decisions in Queensland have not differed on the interpretation and effect of section 10. For example, see the decision of Horneman-Wren SC DCJ in Glenister v Palazi & Anor [2015] QDC 281 at [19].
  2. [69]
    In Eastwood & Eastwood v Scenic Rim Council [2021] QDC 62, Dann DCJ at [32] said that it was clear that summary judgement can be granted on a limitation defence in a sufficiently clear case, referring to Brown v McArthur [2007] QDC 190 at [20]-[24].
  3. [70]
    In Jackson v Redcliffe City Council and Lancefield [2008] QDC 254, Alan Wilson DCJ (as he was then) at [14] referred to the absence of any extension grounds under section 31 of the Limitation of Actions Act 1974 (Qld) (‘LAA’) available to the Plaintiff in that case and concluded for that and other reasons that “it would be a mercy to end the action now.”
  4. [71]
    His Honour Horneman-Wren SC DCJ in Pritchard v The Brisbane City Council and Anor [2020] QDC 189, concluded at [21]-[22] that the plaintiff had no real prospect of succeeding in the part of her claim where limitation was pleaded as a complete defence, and that there was no need for a trial of it; the defendants should have summary judgment in those respects.

The LAA

  1. [72]
    Part 2 of the LAA deals with periods of limitation for different classes of actions. Section 10 covers actions of contract, tort, and certain other actions.
  2. [73]
    By reference to section 10(1)(a), an action founded on simple contract (subject to section 10AA which concerns defamation actions) may not be brought (my italicisation for emphasis) after the expiration of 6 years from the date on which the cause of action arose.
  3. [74]
    The provision may be procedural but, in the context of minor civil disputes in this Tribunal, the procedural prohibition is in my opinion imperative. It means what it says. I will elaborate further later.
  4. [75]
    Section 25 deals with actions to recover rent and provides that an action shall not (my italicisation) be brought, nor a distress made, to recover arrears of rent or damages in respect thereof after the expiration of 6 years from the date on which the arrears became due.
  5. [76]
    Section 35 in Part 3 concerns extensions of limitation periods. It pertains to fresh accrual of action on acknowledgement or part payment.
  6. [77]
    Section 35(3) provides that where a right of action has accrued to recover a debt or other liquidated pecuniary claim and the person liable or accountable therefore acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment.
  7. [78]
    Section 36, concerning formal provisions as to acknowledgement and part payment, provides:
    1. in subsection (1), that every acknowledgment referred to in section 35 shall be in writing and signed by the person making the acknowledgment; and
    2. in subsection (2), that any acknowledgment or payment may be made by the agent of the person by whom it is required to be made under section 35 and shall be made in person or to an agent of the person whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.
  8. [79]
    Section 37(6) provides that a payment made in respect of a debt or other liquidated pecuniary claim shall bind all persons liable in respect thereof.
  9. [80]
    Section 37(6)(a) says that notwithstanding subsection (6), a payment made after the expiration of the period of limitation prescribed for the bringing of an action to recover the debt or other claim shall not bind a person other than the person making the payment and the person’s successors, and shall not bind a successor on whom the liability devolves on the determination of the preceding estate or interest in property under a settlement taking effect before the date of payment.

Show Cause Orders

  1. [81]
    With sections 3, 4, 47, 58, and 62 of the QCAT Act in mind and to potentially end the present proceeding early,[2] I made the following Orders of my own motion on 9th October 2023.
  1. The Applicant must on or by 23 October 2023 file with the Southport Registry of the Tribunal and email to the Respondent written submissions on why the Form 3 Application should not be dismissed because some or all of the amounts claimed are time barred pursuant to the provisions of the Limitation of Actions Act 1974 (Qld).
  2. QCAT Registry email these Orders to the parties.
  3. The Request for Default decision be further considered after 23 October 2023.

Submissions

Respondent’s Submissions

  1. [82]
    Ms McCullough sent an email to the Tribunal Registry on 20 October 2023 concerning the Show Cause orders received by email from the Deputy Registrar in which she said the following.

I was told my lease would be replaced by somebody else they had lined up to take it over April 2016. I have no documentation, I moved from Australia 31 Aug 2016 and I do not owe this man anything. He (sic) also has Bond Money that he took as well that he said he would return. I’m happy for him to keep that to clear this debt.

  1. [83]
    In a second email to the Tribunal Registry on 7 November 2023, Ms McCullough said this.

The debt is beyond the statute of limitations (sic) and I would kindly ask the Judge to deny the request for payment, if possible, please.

Discussion

  1. [84]
    If Ms McCullough is required to file a formal Response, she will doubtless say the same things again, that is, that she owes nothing, the bond forfeited can be kept, and the Application commenced to recover the debt is statute barred.
  2. [85]
    It would be a pointless exercise and a waste of time to require these things be repeated in a formal Response to the Application for minor debt at this time.
  3. [86]
    I will therefore order that Ms McCullough’s submissions stand as her interim Response to the Form 3 Application for the time being and waive the procedural requirement for a formal Form 7 Response[3] in the interests of expedition[4] and minimising technicality as envisaged by section 28(d) of the QCAT Act.

Applicant’s submissions

  1. [87]
    Mr B C Hatchman (Counsel) for the Applicant, in submissions filed with the QCAT Registry on 23 October 2023, refers to the date of service, the date of the request for default decision, and the absence of a Form 7 Response, permitting entry of a default decision against Ms McCullough.
  2. [88]
    He refers:
    1. to the decision in de Robillard v Lion Finance Pty Ltd [2013] QDC 274 (‘de Robillard’) which considered Robinson v Craven (1994) 63 SASR 267 (‘Robinson’) and the Court’s treatment of an expired timeframe pursuant to the Limitation of Actions Act 1974 (Qld).
    2. to de Robillard at [36], where Samios DCJ referred to section 10 of the LAA saying that (the) section of the Queensland Limitation of Actions Act bars the remedy, not the right.
    3. to section 25 of the Limitation of Acts Act 1974 (Qld) and submits that it is not necessary to plead or prove the running of time where that is not part of the cause of action, in this case - a debt owed under the Respondent’s guarantee in this case.[5]
    4. to Samios DCJ at [38] in de Robillard discussing Robinson saying the following.

It was held as the Defendant had not filed a defence raising a plea that the action was statute barred the immunity from action confirmed by the statute was waived. It was accepted by the Court the Plaintiff did not have to obtain an extension of time before entering default judgment.

  1. to Pullen & Anor v Guttridge Haskins & Davey Pty Ltd [1993] 1 VR 27, 36 at p 37 (‘Pullen’) and the following excerpt quoted by Samios DCJ.

As the decisions just cited illustrated, two things follow from the proposition that it is no part of a cause of action that time has not run under a statute of limitations which merely bars the remedy. The first is that the defendant must plead the statute if he wishes to avail himself of it: for when he says that time has run he is not traversing an allegation which the statement of claim should contain, but confessing and avoiding. The second is that the statement of claim is not demurrable (nowadays, may not be made the subject of an objection in point of law) by reason of its failure to show that the cause of action arose within the limitation period.

  1. [89]
    Relying on Pullen, Robinson, and de Robillard, Mr Hatchman submits that Airmech is not required to plead the running of time in the QCAT Application or to obtain an extension of time prior to requesting that default judgment be entered, but that it is for Ms McCullogh to raise a limitation defence.
  2. [90]
    In reply to Ms McCullough’s submissions sent to the Applicant, Mr Hatchman refers to the Tribunal decisions in Lynch v Rodgers Building Enterprises Pty Ltd [2020] QCAT 290 (‘Lynch’).
  3. [91]
    In Lynch, Member Deane at [18], citing an Appeal Tribunal decision in Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne [2018] QCATA 112 (‘Dwyer’), said the following.

The Appeal Tribunal has observed that:

The LAA is, with limited exceptions, procedural. It has the effect of barring the remedy but not extinguishing the right. As Lindgren J observed in Commonwealth v Mewett:

The fact that the proceedings have been commenced within a limitation period is not an element of the cause of action and so need not be pleaded by the plaintiff/applicant but must be pleaded by way of a defence, and unless and until this happens the limitation has no effect … A Court will not, of its own motion, refuse a remedy although the “lateness” of the commencement of proceedings is apparent.

….

There are no pleadings in the Tribunal. Nevertheless, in order to rely upon a defence based upon the LAA a party in the Tribunal must, in our view, raise the application of the LAA sufficiently clearly to enable the other party to identify and address the issues relevant to any time limitation defence relied upon.[6]

  1. [92]
    Mr Hatchman submits that the case law is well settled in this area, and it is clear in its application to this proceeding that where the Respondent has not filed a Response and does not raise the defence of an application being brought out of time pursuant to the Act, then it is not for the Tribunal to consider whether the Application is brought out of time.
  2. [93]
    He submits the Request for a default decision should be granted.

Discussion

  1. [94]
    I have earlier explained the reasons why a decision by default cannot be entered.
  2. [95]
    As to the other submissions:
    1. I agree that the principles concerning limitation defences and procedure in Courts of law in the cases are well settled.
    2. I do not agree that the approach in Lynch and Dwyer applies in the Tribunal’s minor civil dispute jurisdiction; they were decisions in the building dispute list and did not consider the situation regarding minor civil disputes and the very truncated procedures that apply here.
    3. I disagree with the statement that the principles as relate to the Tribunal are well settled law presently and am unaware of any decision of the Queensland Court of Appeal on point.
    4. Though a Tribunal of law and a “court of record”, the Queensland Civil and Administrative Tribunal is neither a court of law nor a court of pleading.
    5. As the decisions in Lynch and Dwyer acknowledged, the Uniform Procedure Rules 1999 (Qld) (‘UCPR’) do not apply here, unless expressly adopted pursuant to section 28(3)(b) of the QCAT Act.
    6. Consequently, there is no obligation on Ms McCullough to plead anything in response to these minor civil dispute proceedings.
  3. [96]
    Rather, in my opinion, it is for an Applicant to assert the elements of a complete cause of action in the reasons which the Form 3 Application expressly requires and, where relevant, any extension of a limitation period relied on for the remedy sought. 
  4. [97]
    In the present case, the Applicant must, if it be the case, positively assert in the reasons that the six-year limitation period has been extended and the facts relied on in that regard so that the Respondent knows the case to be met.
  5. [98]
    Absent that, the procedural prohibition in sections 10 and 25 of the LAA remain absolute: an Application asserting the right, though not extinguished, may not (or shall not) be brought, even though the right itself is not extinguished.
  6. [99]
    Otherwise, the Principal Registrar considering a Request for a default decision cannot know whether an extension applies where a claim for the debt on its face is apparently statute barred.
  7. [100]
    It was open to Airmech to assert in attachment A to the Application that Ms McCullough subsequently acknowledged the claim in a signed statement and made a payment in respect thereof within the meaning of section 35(3) of the Act if that was the fact. However, no such assertion is made.
  8. [101]
    The omission permits the inference that Ms McCullough did not acknowledge the debt in the form required or at all, with exhibit AP-6 to Annexure A to the Application to which I referred proving only that no subsequent payment was forthcoming from Ms McCullough.
  9. [102]
    Therefore, on the face of it, the proceedings cannot be brought.

Procedural fairness

  1. [103]
    Procedural fairness is the right of both Ms McCullough and Airmech and it is my statutory duty to ensure it is afforded to both.
  2. [104]
    In case an extension of the limitation period may be asserted, I will give Airmech the opportunity to amend its application to say so and file further evidence (if it exists) before deciding whether summary dismissal is appropriate at this stage.

Disposal

  1. [105]
    In the circumstances and for the reasons given in this decision, I give the directions and make the orders set out at the start.
  2. [106]
    I am mindful of the Christmas closure of the Courts and Tribunals between 24 December 2023 and 2 January 2024 and the fact of Ms McCullough’s residence overseas in setting the timetable.

Footnotes

[1] Email from Michele Takiwa to Courthouse Southport dated 20 October 2023.

[2] QCAT Act, s 47.

[3] Ibid, s 61(1)(a).

[4] Ibid, ss 4, 5.

[5] de Robillard v Lion Finance Pty Ltd [2013] QDC 274, [37].

[6]  Senior Member Brown and Member Olding in Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne [2018] QCATA 112, [85], [87]; Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471; Commonwealth v Mewitt (1995) 59 FCR 391.

Close

Editorial Notes

  • Published Case Name:

    Airmech Property Pty Ltd v McCullough aka Takiwa

  • Shortened Case Name:

    Airmech Property Pty Ltd v McCullough aka Takiwa

  • MNC:

    [2023] QCAT 490

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    12 Dec 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
Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471
2 citations
Jump To
Cite 1 - (1962) 108 CLR 471
Cite 2 - (1962) 108 CLR 471
Commonwealth of Australia v Mewett (1995) 59 FCR 391
2 citations
Jump To
Cite 1 - (1995) 59 FCR 391
Cite 2 - (1995) 59 FCR 391
de Robillard v Lion Finance Pty Ltd [2013] QDC 274
3 citations
Jump To
Cite 1 - [2013] QDC 274
Cite 2 - [2013] QDC 274
Cite 3 - [2013] QDC 274
Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes v Dunne [2018] QCATA 112
3 citations
Jump To
Cite 1 - [2018] QCATA 112
Cite 2 - [2018] QCATA 112
Cite 3 - [2018] QCATA 112
Eastwood & Eastwood v Scenic Rim Regional Council [2021] QDC 62
2 citations
Jump To
Cite 1 - [2021] QDC 62
Cite 2 - [2021] QDC 62
Glenister v Palazzi [2015] QDC 281
2 citations
Jump To
Cite 1 - [2015] QDC 281
Cite 2 - [2015] QDC 281
Haskett v Bowman [2007] QDC 190
1 citation
Jump To
Cite 1 - [2007] QDC 190
Jackson v Redcliffe City Council [2008] QDC 254
2 citations
Jump To
Cite 1 - [2008] QDC 254
Cite 2 - [2008] QDC 254
Lynch v Rodgers Building Enterprises Pty Ltd [2020] QCAT 290
2 citations
Jump To
Cite 1 - [2020] QCAT 290
Cite 2 - [2020] QCAT 290
Pritchard v The Brisbane City Council [2020] QDC 189
2 citations
Jump To
Cite 1 - [2020] QDC 189
Cite 2 - [2020] QDC 189
Pullen v Guteridge Haskins & Davey (1993) 1 VR 27
1 citation
Jump To
Cite 1 - (1993) 1 VR 27
Robinson v Craven (1994) 63 SASR 267
1 citation
Jump To
Cite 1 - (1994) 63 SASR 267
Scholfield v Scholfield [2011] QDC 306
2 citations
Jump To
Cite 1 - [2011] QDC 306
Cite 2 - [2011] QDC 306
Tabaro v Ratakhin [2023] QCATA 143
2 citations
Jump To
Cite 1 - [2023] QCATA 143
Cite 2 - [2023] QCATA 143

Cases Citing

Case NameFull CitationFrequency
Wallace v Hull [2024] QCATA 702 citations
1

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