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Melrose v Pitworth Pty Ltd[2016] QCATA 185

Melrose v Pitworth Pty Ltd[2016] QCATA 185

CITATION:

Melrose v Pitworth Pty Ltd [2016] QCATA 185

PARTIES:

Dominick Valwyn Melrose

(Applicant/Appellant)

v

Pitwirth Pty Ltd t/as Vadals ATF Raper Family Trust & Dave Raper Family Trust

(Respondent)

APPLICATION NUMBER:

APL189 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

16 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 10 May 2016 is set aside.
  4. The minor debt claim filed 9 November 2015 is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – DESCRIPTION OF PARTIES – where invoices addressed to company – where claim against individual – where decision by default – whether cause of action against individual – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – PERSONAL SERVICE – where claim named company and individual – where claim served at company address – whether claim served on individual personally – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 38

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

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]
    Royal Chef Selection Pty Ltd bought product from Pitworth Pty Ltd t/as Vadals ATF Raper Family Trust & Dave Raper Family Trust. Pitworth rendered invoices but they went unpaid. Pitworth filed a minor debt claim against ‘Dominick Valwyn Melrose of Royal Chef Selection Pty Ltd’.
  2. [2]
    Mr Melrose applied for an extension of time in which to file a response. The tribunal granted the extension but Mr Melrose did not file a response and a decision by default was entered.
  3. [3]
    Mr Melrose successfully applied to set aside the decision by default but still did not file a response. The tribunal reinstated the decision by default.
  4. [4]
    Mr Melrose wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  5. [5]
    Mr Melrose says Royal Chef Selection Pty Ltd is the correct debtor. He says there was no evidence before the tribunal that he was personally liable for the debt.  He says the affidavit of debt is defective. He says the request for the decision in default is irregular. He says that, as he was not served with the claim, the tribunal cannot enter a decision by default against him.

Who is the correct debtor?

  1. [6]
    The invoices attached to the claim were addressed to Royal Chef Selection Ltd. Mr Melrose is a director of the company but that, by itself, is not enough to establish that he is personally liable for the debt.
  2. [7]
    Pitworth filed a copy of an application for credit that Mr Melrose signed. The credit application refers to the general terms of trade (overleaf) but the general terms of trade are not annexed to that document.
  3. [8]
    It might be that the general terms of trade are those on the obverse of the invoices. If so, they do not create a direct liability in Mr Melrose. Although there is a reference to a guarantor[3], there is no document that could be called a guarantee.
  4. [9]
    Mr Melrose is correct. Royal Chef Selection Pty Ltd is the only debtor disclosed by Pitworth’s material. There is no evidence before the tirbual that Mr Melrose should be personally liable for the debt.

The affidavit of debt

  1. [10]
    Mr Melrose says the affidavit of debt is defective because it does not properly identify the respondent.  I agree. In Part A, the respondent is identified as ‘Dominick Valwyn of Royal Chef P/L’. Mr Melrose is not named. The company is not correctly named.

The request for the decision

  1. [11]
    Mr Melrose also says the request for decision is incorrectly signed by Christine Kulla, whereas Kelly Gibson swore the affidavit of debt. On closer examination, it is apparent that Ms Kulla is signing as witness, and simply inserted her name at the wrong place. I would not normally regard this error as grounds for invalidating the affidavit of debt.

Was Mr Melrose correctly served?

  1. [12]
    Mr Melrose says the affidavit of service is defective because it does not depose to the fact that he was served personally or that he was served at his residential address.
  2. [13]
    An application for minor debt must be served personally on an individual.[4] Service can only be effected by leaving it at the person’s last known place of business if the individual refuses to accept the document or service personally is not practical. There was no evidence that Mr Melrose was served personally, or that he refused to accept service, or that service on him personally was not practicable. The affidavit of service was defective.

Conclusion

  1. [14]
    The decision in default of a response was irregularly entered. The tribunal was in error and leave to appeal should be granted. The appeal should be allowed and the decision of 10 May 2016 set aside. Because there is no evidence that Mr Melrose was personally liable for the debts of Royal Chef Selection Pty Ltd, the minor debt claim filed 9 November 2015 should be dismissed.

Footnotes

[1]   QCAT Act s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3]  Clause 3.2(a).

[4] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 38.

Close

Editorial Notes

  • Published Case Name:

    Melrose v Pitworth Pty Ltd

  • Shortened Case Name:

    Melrose v Pitworth Pty Ltd

  • MNC:

    [2016] QCATA 185

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    16 Nov 2016

Appeal Status

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

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