New Start Auto Loans Pty Ltd v Baird (No 2)
[2024] QCAT 177
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- Unreported Judgment
- New Start Auto Loans Pty Ltd v Baird (No 2)[2024] QCAT 177
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New Start Auto Loans Pty Ltd v Baird (No 2)[2024] QCAT 177
New Start Auto Loans Pty Ltd v Baird (No 2)[2024] QCAT 177
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | New Start Auto Loans Pty Ltd v Baird (No 2) [2024] QCAT 177 |
PARTIES: | NEW START AUTO LOANS PTY LTD (applicant) v MANDY LOUISE BAird (respondent) |
APPLICATION NO/S: | Q50917/23 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 23 April 2024 |
HEARING DATE: | 23 April 2024 |
HEARD AT: | Southport |
DECISION OF: | Adjudicator Alan Walsh |
ORDERS: |
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CATCHWORDS: | QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – APPLICATION FOR MINOR DEBT – APPROVED ENTITES – REPRESENTATION – SERVICE OF PROCEEDINGS – ORDERS AND DIRECTION – where the Tribunal ordered that the Applicant file submissions on why it should not file an amended Form 4 Application substituting its own particulars for those of Mr Bax and the Collection Agent – where such submissions filed – where the Tribunal erred in finding Collection Agent not an approved entity to lodge documents electronically – where Collection Agent an approved entity – whether further orders for filing and service of an amended Form 4 Application ought be made Acts Interpretation Act 1954 (Qld), Schedule 1 Service and Execution of Process Act 1992 (Cth), Part 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 58, s 60, s 171, s 224 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 26, r 27, r 57, r 100A |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]I previously published my decision and reasons in New Start Auto Loans Pty Ltd v Baird [2024] QCAT 122 delivered on 22 March 2024.
- [2]I ordered the Applicant to file written submissions as to why the Tribunal should not order that it file an amended Form 4 Application substituting in full its Particulars for those of Mr Bax and the Collection Agent including but not limited to its own contact details, address, email address, and address for service and a current address for service on the Respondent; and serve the amended Form 4 Application on the Respondent within 60 days thereafter.
- [3]Subsequently, Craig Bax of Options Group Collections has on 8 April 2024 emailed to the Courthouse at Southport a “self-explanatory communication from Options Group Collections in this case being submissions and attachment to the submissions ordered to be lodged.”
- [4]The submissions of some 11 pages plus a 2-page attachment are subtitled “Submissions of New Start Auto Loans Pty Ltd” and end with the words “Dated 8 April 2024 New Start Auto Loans Pty Ltd” but are not signed.
- [5]The submissions:
- recite the history of refusal of several applications for default decisions in various minor debt proceedings and refer to applications in a matter of NSAL v Barry John Dominey in which an Adjudicator had found there was good service of an application for minor debt where default decisions had been refused; and
- recite the history of communications and events in the present case.
- [6]They also state:
- Collection and Recovery Options Pty Ltd is in fact an approved entity for electronic filing of applications and other documents in minor debt proceedings.
- in filing an application for a default decision in the present case, Collection and Recovery Options Pty Ltd did not act unlawfully.
- no leave to represent New Start Auto Loans Pty Ltd is required.
- there is no purpose or utility in the proposed orders because I have proceeded to make orders on the false premise that Collection and Recovery Options Pty Ltd is not an approved entity.
- [7]I accept the submission that Collection and Recovery Options Pty Ltd is an approved entity and that the electronic filing by it of the application for a default decision was therefore not unlawful.
- [8]I accept that the following findings in my decision delivered on 22 March 2024 were consequently incorrect, namely -
at [5], that the Collection Agent could not properly file the request for a default decision without leave first obtained.
at [39], that the Collection Agent is not an approved entity and could not lawfully file the Applicant’s Application for minor debt electronically.
- [9]I correct the record in those respects and this decision is to be read together with the first delivered on 22 March 2024.
- [10]The explanation for my previous findings at [5] and [39] (above) is that the List of approved entities kept by the Principal Registrar downloaded to my computer incompletely at the time, whereas the List I have subsequently viewed and read after Mr Bax’s email dated 8 April 2024 and accompanying submissions:
- contains a complete list with two parallel columns of names of entities approved to file documents electronically in minor debt proceedings.
- includes the name Collection and Recovery Options Pty Ltd which appears toward the top of the right-hand column on page 4 of the list.
- [11]However, I do not accept the submission that no leave to represent New Start Auto Loans Pty Ltd is required and that there is no purpose or utility in the proposed orders. I repeat the reasons set out in my first decision.
- [12]An entity’s approval to prepare and file documents electronically in minor debt proceedings must not be conflated with approval of the entity to represent an applicant.
- [13]Rule 100A of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) limits the approval given to an entity to preparing documents for a party and filing them electronically under rules 26 and 27 of the Tribunal’s rules through a service provider.
- [14]An Applicant must, in its application prepared and filed by a collection agent, supply its own particulars rather than those of the agent, though it seems unobjectionable that on the present form in the footer the details of the collection agent continue to appear. But that is all.
- [15]In the event the Form 4 Application had been correctly filled out by Collection and Recovery Options Pty Ltd as I will now order, it would have been clear to the reader, including the Respondent when served and Registry when considering an application for a default decision and the related affidavit of service, that –
- New Start Auto Loans Pty Ltd apparently has no corporate domicile or place of business or registered office in the State of Queensland. Rather, it was at all relevant times at Tweed Heads in the State of New South Wales and apparently still is.
- Only Collection and Recovery Options Pty Ltd is the entity that has a corporate domicile or place of business or registered office in the State of Queensland, but it is not a party to the proceeding. Rather, it is merely the facilitator in the sense referred to in Rule 100A.
- The current address and whereabouts of Ms Baird are not known, in particular whether she currently lives in Queensland or in another State or Territory of Australia.
- If Ms Baird in fact lives interstate (which is not known) then effective service on her there would require that the Application be accompanied by a Form 1 under Part 4 of the provisions of the Service and Execution of Process Act 1992 (Cth).
- [16]The foregoing raises a question of jurisdiction or appropriate forum for the proceeding for consideration at another time.
- [17]For completeness, I note that QCAT originating forms which include a Form 3 Minor Civil Dispute Application do not contain fields for agent details to be provided.
- [18]Therefore, if leave for representation by an agent is sought then a Form 56 application must be filed and the form makes provision for the proposed representative agent’s details and address for service to be inserted.
Orders
- [19]The orders I now make are those set out on the first page of these reasons.