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Zupps Southside Pty Ltd v Shannon Tower Pty Ltd QCATA 118
QUEENSLAND CIVIL AND
Zupps Southside Pty Ltd v Shannon Tower Pty Ltd t/as Brick N Pave  QCATA 118
Zupps Southside Pty Ltd
Shannon Tower Pty Ltd t/as Brick N Pave
ORIGINATING APPLICATION NO/S:
5 August 2019
On the papers
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – where the respondent commenced consumer proceedings in the Tribunal – where service was effected at an address in Western Australia – where the applicant traded in Queensland – where the applicants’ address noted in the application used by the registry for service of documents was a truck workshop – where the address was one of a number of addresses for the applicant – where judgment was given against the applicant at hearing because the applicant failed to attend – where the applicant claimed it had not received notice of hearing – whether the application for leave to appeal should more appropriately be determined as an application to reopen proceedings
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A(2)
REASONS FOR DECISION
- The respondent (‘Shannons’) brought a consumer dispute proceeding in the Tribunal on 23 May 2018 claiming $11,782.32 against applicant/appellant (‘Zupps’) claiming it had performed defective repair work in 2017 in respect of Shannons’ 2011 Fuso truck.
- Zupps details, including an address, given by Shannons in the consumer application included an address at 860 Kingsford Smith Drive, Eagle Farm, 4009.
- It is Shannons’ responsibility to effect service of the application on Zupps.
- Shannons filed an affidavit of service claiming that on 8 June 2018. In the affidavit the person serving the application stated he had served the documents by forwarding a copy to Zupps at ‘the address in the entity’s address for service, namely 21 Old Aberdeen Place, West Perth, 6005.’
- There was provision in the pro forma affidavit of service for the respondent corporation to be served at its registered office. That part of the form was not completed however. It is unclear how service at an address in Western Australia effected service of application on Zupps trading in Queensland.
- Given that when documents were posted to Western Australia Zupps had not yet been served with the initiating process, Zupps had no address for service that could be utilised for service. An address for service in the proceedings is an address nominated by a respondent after service of initiating documents is affected.
- The Tribunal listed the matter for mediation. The address in the consumer application, 860 Kingsford Smith Drive, Eagle Farm, 4009, was used to advise Zupps of the date of mediation but no one from Zupps attended.
- The matter was listed for a hearing. Again the same address 860 Kingsford Smith Drive, Eagle Farm, 4009 was used by the registry to advise Zupps of the hearing date. Zupps again failed to attend. At the hearing, given Zupps failure to appear, judgment was given in favour of the applicant.
- Subsequently, Zupps has filed the within application for leave to appeal. The address given by Zupps in the appeal application is 1699 Ipswich Road, Rocklea. The basis of appeal is simple. Zupps says it never received notice of the Tribunal hearing.
- The address 860 Kingsford Smith Drive, Eagle Farm, 4009 is noted on an invoice for work done on the truck concerned. There is nothing to indicate it is more than a truck workshop where servicing of trucks is done.
- The initial consumer dispute filed by Shannons exhibited many emails by and to Shannons about the work done on the truck, most of them between Daimler Trucks Brisbane and Shannons. In the Daimler Trucks emails the address given for Daimler is 1699 Ipswich Road, Rocklea, although there was also a ‘Daimler’ address in Victoria noted on an email because presumably the correspondent worked there.
- In an affidavit filed with the initial consumer dispute, Mr Michel for Shannons said a letter of demand had been sent by Shannons’ solicitors to Daimler Trucks because Daimler Trucks owned Zupps. The letter of demand is attached to the affidavit. It was addressed to Mr B Brooke, Group Service Manager (Trucks Qld) 1699 Ipswich Road, Rocklea Queensland 4106.
- It is unclear who ‘Trucks Qld’ is, however, in the body of the letter there is reference to Zupps Southside Pty Ltd and the truck concerned.
- Apart from the invoice for the work done at the workshop, there appears to be nothing else relied on to link the address at 860 Kingsford Smith Drive, Eagle Farm, 4009 with Zupps principal place of business.
- Why Shannons chose this address as Zupps’ address in the proceedings is unclear. Why the initiating application and associated material was sent to Western Australia is also unclear.
- On the material to hand it seems Shannons never affected appropriate service of the consumer application on Zupps from outset.
- One final hurdle for Shannons concerning that initial service is that service was purportedly effected out of the State. By Practice Direction 2 of 2014 QCAT applications to be served in Australia but outside Queensland must be accompanied by Form 1 as prescribed by Regulation 4 of the Service and Execution of Process Regulations 1993 (Cth). There is no evidence that a Form 1 was attached to the documents sent by post to Western Australia.
- The parties were given an opportunity to file submissions about reopening the matter. They have done that. Zupps did not understand that it was called upon to elaborate on its assertion that it was not aware of the proceedings in the Tribunal. Rather it sought to agitate the issues concerning the adequacy of the work done on the truck.
- In their material, Shannons asserted Zupps failed to state in their submissions about potentially reopening the matter, a valid reason to reopen. However Shannons themselves did not explain why service was affected out of the State. Nor why the truck workshop address on the invoice dated August 2017 was used as Zupps address when the address at 1699 Ipswich Road, Rocklea Queensland 4106 was used by Shannons’ solicitors and in emails through 2018.
- I consider Zupps have reasonable prospects of establishing a reopening ground to explain why they did not appear at the hearing of the proceedings.
- Whilst the directions given in the application for leave to appeal contemplated the Appeal Tribunal making the necessary orders reopening the proceeding if necessary, the QCAT Act in fact requires the matter to be referred back to the Tribunal to decide whether the matter should be reopened.
- I shall make the necessary orders to do that and allow the Tribunal to decide whether the matter should be reopened. A copy of the submissions made by the parties pursuant to the directions made by the Appeal Tribunal on 1 April 2019 should be provided to the Tribunal below.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A(2).
- Published Case Name:
Zupps Southside Pty Ltd v Shannon Tower Pty Ltd t/as Brick N Pave
- Shortened Case Name:
Zupps Southside Pty Ltd v Shannon Tower Pty Ltd
 QCATA 118
05 Aug 2019