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Xu v Lauro[2016] QCATA 22

CITATION:

Xu v Lauro [2016] QCATA 22

PARTIES:

Yuyu Xu

(Applicant/Appellant)

v

Mario Lauro

(Respondent)

APPLICATION NUMBER:

APL460 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

1 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision dated 9 October 2015, to refuse to set aside a decision by default, is set aside.
  4. The decision by default dated 7 September 2015, to the extent it relates to Yuyu Xu, is set aside.
  5. The claim filed 30 April 2015, to the extent it relates to Yuyu Xu, is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – DECISION BY DEFAULT – where claim against two respondents – where no claim against second respondent except for request for information  – where no responses filed – where tribunal entered decision by default – where application to set aside default decision – where application refused – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 51

House v The King (1936) 55 CLR 499

Lovell v Lovell (1950) 81 CLR 513

Pickering v McArthur [2005] QCA 294

Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151

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]
    Mario Lauro is a carpenter/handyman. He did some work for Dante Interiors Gold Coast at the home of Yuyu Xu. Ms Xu was Dante’s client. Mr Lauro did not get paid, so he filed a claim against Ms Xu[1]. The tribunal dismissed that claim.
  2. [2]
    Mr Lauro filed another claim against Dante and Ms Xu. He wanted:

… payment from Dante Interiors for the above amount.

I am also seeking from Dante Interiors to supply the contract (indecipherable) Mrs Yu Yu Xu to verify if Mrs Yu Yu Xu has paid Dante Interiors work done by me.

  1. [3]
    Ms Xu did not file a response to that claim. Mr Lauro filed an application for a decision by default. The tribunal, exercising its administrative function, entered a decision that both Dante and Ms Xu pay Mr Lauro $2,069.
  2. [4]
    Ms Xu applied to set a side that decision. The tribunal dismissed her application.
  3. [5]
    Ms Xu 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.[2] 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.[3]
  4. [6]
    Section 51 of the QCAT Act gives the tribunal power to set aside a decision by default. The factors relevant to that discretion include whether or not there is a good reason for the failure to file a response; any delay in bringing the application; Ms Xu’s conduct in the proceedings before and after the decision; her good faith; whether she has raised a defence on the merits; and whether Mr Lauro would be severely prejudiced if the decision was set aside, in a way which could not be adequately compensated by, say, costs[4].
  5. [7]
    I will not interfere with the way the tribunal exercised a discretion unless it can be shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[5]. Just because I might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[6].
  6. [8]
    I am satisfied that there was a clear misapplication of the discretion in this case. Ms Xu says she did not file a response because she thought the matter was finalised. There was only a short delay between the decision (made on 7 September 2015) and her application to set it aside (made on 30 September 2015). Ms Xu raised a defence on the merits.
  7. [9]
    Importantly, Mr Lauro will not be prejudiced by setting aside the decision because he sought no relief from her. The decision by default was rightly entered against Dante but Mr Lauro wanted nothing from Ms Xu except confirmation that she had paid Dante. Mr Lauro did not ask for an order that Ms Xu pay him the amount of his claim because he had already tried, and failed, to get the money from her.
  8. [10]
    Leave to appeal should be granted and the appeal allowed. The decision dated 9 October 2015, to refuse to set aside a decision by default, is set aside. The decision by default dated 7 September 2015, to the extent it relates to Yuyu Xu, is set aside. The claim filed 30 April 2015, to the extent it relates to Yuyu Xu, is dismissed.

Footnotes

[1]Q113/15.

[2]QCAT Act, s 142(3)(a)(i).

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

[4] Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151.

[5] House v The King (1936) 55 CLR 499, at 504.

[6] Lovell v Lovell (1950) 81 CLR 513.

Close

Editorial Notes

  • Published Case Name:

    Yuyu Xu v Mario Lauro

  • Shortened Case Name:

    Xu v Lauro

  • MNC:

    [2016] QCATA 22

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    01 Feb 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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