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- Ali v Twiyo Trading Trust[2018] QCATA 67
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Ali v Twiyo Trading Trust[2018] QCATA 67
Ali v Twiyo Trading Trust[2018] QCATA 67
CITATION: | Ali v Twiyo Trading Trust [2018] QCATA 67 |
PARTIES: | Daniel Farook Ali (Appellant) |
v | |
Twiyo Trading Trust (Respondent) | |
APPLICATION NUMBER: | APL271-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 8 May 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with discretion of Tribunal below – where application to set aside default judgement – where relevant consideration is whether default judgement regularly entered – where legal capacity of applicant relevant issue – where applicant is trust – where trust cannot be party to legal proceedings – where not evident that Tribunal considered whether legal capacity of applicant to have judgement entered in its favour – where Tribunal failed to take into account relevant consideration Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 51, s 143, s 146 Anlaby v Praetorius (1888) 20 QBD 764 Aviation Services of Australia Pty Ltd v Byrt [2009] QSC 387 Bradlyn Nominees Pty Ltd v Saikovski Cachia v Grech [2009] NSWCA 232 Ballandean Investments Pty Ltd v City Pacific Limited (in liq) & Anor [2010] QCA 113 Cusack v De Angelis [2008] 1 Qd R 344 DCT v Balnaves, unreported [1998] 1388 FCA, Mansfield J, 30 October 1998 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hughes v Justin [1894] 1 QB 667 Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] |
APPEARANCES: | This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
What is this appeal about?
- [1]On 1 August 2017, the Tribunal refused an application by Daniel Ali to set aside a default judgement against him in favour of Twiyo Trading Trust for $25,000.
- [2]Mr Ali wants to appeal that decision.
- [3]
- [4]In determining whether to grant leave, the Tribunal will consider established principles including:
- a)whether there is a reasonably arguable case of error in the primary decision;[2]
- b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]
- c)whether leave is needed to correct a substantial injustice caused by some error;[4] and
- d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]
Does the Appeal Tribunal have jurisdiction to hear an appeal of a decision to not set aside a decision by default?
- [5]Darren Bartsch made submissions on behalf of the Twiyo Trading Trust. He submitted that a decision to set aside a decision by default cannot be appealed.
- [6]Section 142(2) of the QCAT Act relevantly provides that a party to a proceeding cannot appeal against a decision to set aside a default decision.
- [7]However, the decision appealed against is a decision to not set aside a decision by default. The effect of not hearing an appeal against a decision to not set aside a default decision would be to finally determine parties’ rights without a proper hearing. That would be contrary to the Tribunal’s mandate to act fairly and observe the rules of natural justice.[6] That cannot be the effect of section 142(2) of the QCAT Act.
- [8]Section 142(2) of the QCAT Act does not apply to a decision to not set aside a decision by default. The Appeal Tribunal does have jurisdiction to hear an appeal of a decision to not set aside a decision by default.
Did the Tribunal fail to take into account a relevant consideration in not setting aside default judgement?
- [9]The Tribunal may set aside a default decision upon application by a Respondent.[7] In deciding an application to set aside a default judgement, a relevant consideration is whether default judgement has been regularly entered.
- [10]On 6 June 2017, and before judgement was entered by default, Mr Ali had applied to the Tribunal to strike out the original Application on the grounds that the Applicant was not a legal entity with the capacity to sue or be sued. Although the Application to strike out was dismissed, the legal capacity of the applicant was still a relevant issue in deciding whether to set aside the default judgement, because a judgment entered in favour of a party who has no entitlement to it is irregular.[8]
- [11]The Applicant is a trust. A trust is not a separate legal entity but a description of a legal relationship characterised by a collection of duties, disabilities, rights and powers in relation to some specific property imposed upon, or accorded to, an existing legal person, the trustee.[9]
- [12]A consequence of a trust not being an entity separate from the trustee or beneficiaries is that it cannot be a party to legal proceedings. This raises issues about the capacity of the Applicant to obtain judgement for itself,[10] and whether Mr Ali is entitled to have the judgement set aside as of right for being irregularly entered.[11]
- [13]Unfortunately, it is not evident here that the Tribunal considered the issue of the legal capacity of the Applicant to have a judgement entered in its favour. This means that in exercising the discretion whether to set aside the default judgement, the Tribunal failed to take into account a relevant consideration. This failure to take into account a relevant consideration is an error of law.[12]
- [14]For this reason, leave to appeal must be granted to correct a substantial injustice caused by the error. The appeal must be allowed and the matter remitted to the Tribunal for determination according to law.[13]
Should the Appeal Tribunal grant leave to appeal?
- [15]Leave to appeal is granted and the appeal allowed.
- [16]The Order refusing the Application to set aside the default judgement should be set aside.
- [17]The Application to set aside the default judgement should be remitted for rehearing before the Tribunal, where a determination can be made after giving all parties an opportunity to make submissions about the Applicant.
What is the appropriate Order?
- [18]The appropriate Orders are:
- a)Leave to appeal granted;
- b)Appeal allowed;
- c)The Order refusing the Application filed on 20 July 2017 to set aside the default judgement entered on 27 June 2017 is set aside; and
- d)The Application filed on 20 June 2017 to set aside the default judgement entered on 27 June 2017 is remitted to the Tribunal for determination according to law.
- a)
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[6] QCAT Act s 28(2), (3).
[7] QCAT Act s 51.
[8]Ballandean Investments Pty Ltd v City Pacific Limited (in liq) & Anor [2010] QCA 113, (Holmes JA, as Her Honour then was) [27]; citing with approval Anlaby v Praetorius (1888) 20 QBD 764, 769 and Hughes v Justin [1894] 1 QB 667, 669-670.
[9]DCT v Balnaves, unreported [1998] 1388 FCA, Mansfield J, 30 October 1998.
[10]Aviation Services of Australia Pty Ltd v Byrt [2009] QSC 387, [22] (Martin J).
[11]Cusack v De Angelis [2008] 1 Qd R 344, [36] (Muir JA).
[12]Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186.
[13] QCAT Act, s 146(c).