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Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd ATF SEQ Electronics Trust[2020] QCATA 136

Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd ATF SEQ Electronics Trust[2020] QCATA 136

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd ATF SEQ Electronics Trust [2020] QCATA 136

PARTIES:

varsity electrical pty ltd

(applicant/appellant)

v

seq electronics and entrance systems pty ltd atf seq electronics trust

(respondent)

APPLICATION NO/S:

APL323-19

ORIGINATING APPLICATION

NO/S:

MCDO 51300-19 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

21 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicant brought minor debt proceedings to recover money due for work done – where the minor debt application was served at the registered office of the respondent corporation noted in ASIC records – where the company’s registered address had changed without the change being advised to ASIC – where a default decision was entered on failure to file a response – where the respondent to the minor debt claim applied to set aside the default decision – where the application to set aside was refused – where the respondent appealed the refusal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52

Pickering v McArthur [2005] QCA 294

 

REPRESENTATION:

Applicant:

Self-represented by S McCormick

Respondent:

Self-represented

APPEARANCES:

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. [1]
    The applicant (‘Varsity’) engaged the respondent (‘SEQ’) to provide electronic entry systems at a property and were subsequently charged for the work done and also for travelling time for a worker.
  2. [2]
    The charges totalled $13,564.
  3. [3]
    Varsity refused to pay. SEQ commenced proceedings in the Tribunal to recover that sum as a minor debt due and owing.
  4. [4]
    SEQ served Varsity with the minor debt application by post to the registered office of Varsity.
  5. [5]
    Varsity paid $2,305.19 but did not pay the balance.
  6. [6]
    Varsity failed to file a response to the claim within the 28 days allowed.
  7. [7]
    SEQ obtained default judgment for the balance outstanding of $11,259.47 plus allowable costs on 30 October 2019.
  8. [8]
    On 4 November 2019 Varsity applied to set aside the default decision. That application came before an Adjudicator for determination on 11 November 2019. The Adjudicator refused the application.
  9. [9]
    Varsity seeks leave to appeal that decision.
  10. [10]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.[1]
  11. [11]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
  12. [12]
    Varsity seeks to appeal on the basis it was not accorded natural justice. It says it has been denied the opportunity to be heard.
  13. [13]
    The minor debt application was served as permitted by the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) by post to the registered office of Varsity.
  14. [14]
    Varsity states it never received the minor debt application. The registered office details noted at ASIC were wrong. In March 2018 the registered office address had changed. The explanation given the Adjudicator in a written submission by Varsity was as follows:

The CEO of the (Varsity) requested the address change and indeed this did occur on the 12th March 2018. It only affected the business name address and not the company address. It was brought to the attention of the then Office Manager but only after an invoice arrived in February 2019. The CEO requested the change take place on 4 March 2019 again.

The Office Manager resigned but did not leave the information about the Corporate key. A call was made to ASIC and the situation explained. We applied for another Corporate key and was (sic) also told to complete the old Form 484 (now defunct). For ASIC to action in the meantime. We did this.

Later we received a reply letter from ASIC saying the Form 484 was defunct. A real case of the ‘left hand not knowing what the right hand was doing’. A letter was sent again explaining what had occurred. A follow up phone call was placed by the CEO to see if this had taken effect. We are still awaiting written confirmation. At this point we were unaware of the serving of the documents – which is now a residential dwelling.

  1. [15]
    The usual factors to be considered in applications to set aside default judgments were noted as follows in Cook v D A Manufacturing Co Pty Ltd:[3]

… give a satisfactory explanation for the failure to appear, establish no unreasonable delay in making the application, and demonstrate that it had a prima facie defence on the merits.[4]

  1. [16]
    The default decision was given on Wednesday 30 October 2019. Varsity applied to set it aside on Monday 4 November 2019. There was no delay in making the application.
  2. [17]
    The Adjudicator did not accept Varsity’s reason for failing to file a response however, namely that the initiating material was served at an old registered office and in result Varsity knew nothing about the claim and being required to file a response. The Adjudicator pointed out that the public are entitled to rely on the publicly listed details of corporations. They are entitled to expect the details to be accurate. There is an obligation on corporate office holders to update changed details including the current address of the registered office of a corporation within 28 days of change.
  3. [18]
    It has been recognised that the most important factor in determining an application to set aside a default decision is establishing a prima facie defence on the merits.[5]
  4. [19]
    The Adjudicator noted that Varsity did not deny the existence of a debt to SEQ. Rather it was the reasonableness of the charges made that were challenged. The Adjudicator said it was not possible to assess the merit of that claim however without deciding the matter in its entirety after a hearing. The supporting material filed with the application consisted mostly of a confusing array of emails exchanged between Varsity and SEQ. There were no particulars of the contract of engagement provided nor particulars of how the amounts charged were outside the scope of the agreement. Rather the emails contained broad brush allegations of unreasonableness and time wastage and suggestions about a compromise of the amount claimed.
  5. [20]
    In Cook it was noted that the discretionary power to set aside a judgment in default of appearance was a wide one.[6]
  6. [21]
    The appropriate principles were applied by the Adjudicator in determining the application to set aside the default decision. The decision made by the Adjudicator was within the discretionary range available. As such there is no justification to overturn the decision.
  7. [22]
    Leave to appeal is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

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

[3] [2004] QCA 52.

[4] Ibid, [15].

[5] Ibid, [19].

[6] Ibid, [18].

Close

Editorial Notes

  • Published Case Name:

    Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd ATF SEQ Electronics Trust

  • Shortened Case Name:

    Varsity Electrical Pty Ltd v SEQ Electronics and Entrance Systems Pty Ltd ATF SEQ Electronics Trust

  • MNC:

    [2020] QCATA 136

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    21 Sep 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52
4 citations
Jump To
Cite 1 - [2004] QCA 52
Cite 2 - [2004] QCA 52
Cite 3 - [2004] QCA 52
Cite 4 - [2004] QCA 52
Pickering v McArthur [2005] QCA 294
3 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Cite 3 - [2005] QCA 294

Cases Citing

Case NameFull CitationFrequency
NDISP Pty Ltd v Bowieberghs Pty Ltd [2024] QCATA 992 citations
1

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