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  4. Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust - [2021] QCATA 16

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Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust[2021] QCATA 16

Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust[2021] QCATA 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust [2021] QCATA 16

PARTIES:

BRIAN CHOI (ALSO KNOWN AS HYUNG SEOK CHOI)

(applicant)

v

KWANGSU CHOI AS TRUSTEE FOR THE CHOI FAMILY TRUST

(respondent)

APPLICATION NO:

APL349-19

ORIGINATING

APPLICATION NO/S:

BDL058-18

MATTER TYPE:

Appeals

DELIVERED ON:

29 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

Member Lumb

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The application for leave to rely upon fresh evidence is refused.
  4. Order number 3 of the decision of the Tribunal dated 4 April 2019 is set aside.
  5. The matter be returned to a differently constituted  Tribunal for reconsideration as between Brian Choi (also known as Hyung Seok Choi) and Kwangsu Choi as trustee for the Choi Family Trust.

6.(i)Either party may file in the Tribunal and serve on the other party any application for costs and written submissions in support, no longer than 5 pages, by:

4:00pm on 22 February 2021;

  1. (ii)
    If a party files an application for costs, the other party must file and serve any submissions in response of no more than 3 pages, by:

4:00pm on 15 March 2021;

  1. (iii)
    Any application for costs will be heard and determined on the papers, not before:

16 March 2021.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – decision in default of appearance at compulsory conference under s 72 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether decision irregularly entered – whether party against whom decision made properly served with originating application – whether defence on the merits

Acts Interpretation Act 1954 (Qld), s 39, s 39A

Electronic Transactions (Queensland) Act 2001 (Qld), s 11

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 72

Queensland and Civil and Administrative Tribunal Rules 2009, r 39, r 41

Statutory Instructions Act 1992 (Qld), s 7, s 14(1), sch 1

Bruder Expedition Pty Ltd v Coles [2020] QSC 049

Conveyer & General Engineering Pty Ltd v Basetec services Pty Ltd and Anor [2015] 1 Qd R 265

Cooper v O'Connor [2016] QCATA 180

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Grant Thornton (Qld) Pty Ltd v Green Global Technologies [2009] QSC 262

Lainor Investments Pty Ltd v Sunbuster Solar Shades Pty Ltd [2020] QDC 059

Penfolds Projects Pty Ltd v Securcorp Limited [2011] QDC 77

Re Pacific Mobile Phones Pty Ltd [2008] QSC 210

Reg v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682

REPRESENTATION:

Applicant:

Self-represented

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

Introduction

  1. [1]
    We have before us an application for leave to appeal or appeal (‘the Appeal Application’) filed by Hyung Seok Choi (also known as Brian Choi) (‘Brian Choi’) on 17 December 2019 and an application for leave to rely upon fresh evidence filed by the respondent on 30 July 2020.
  2. [2]
    The procedural history of this matter is convoluted but at the heart of the Appeal Application is the decision of the Tribunal dated 4 April 2019 (‘the Original Decision’) pursuant to which the Member at first instance (‘the Member’) made various orders in Case number BDL058-18 (‘BDL058-18’) in which the respondent to the Appeal Application (‘Kwangsu Choi’) was the applicant.  The ultimate named respondents in BDL058-18 were Hyunjung Jay Lee t/a LNC Management Consulting (‘Ms Lee’), as first-named respondent, and Brian Choi, as second-named respondent.
  3. [3]
    By the Original Decision, the Member made the following orders insofar as they directly concern Brian Choi:

THE TRIBUNAL ORDERS BY CONSENT THAT:

  1. The name of the Second Respondent described as Brian Choi (also known as Hyeongseok Choi) be amended to Brian Choi (also known as Hyung Seok Choi).

…

  1. Pursuant to s 72 of the Queensland Civil and Administrative Tribunal Act 2009, and in view of the non-appearance of the Second Respondent at the Compulsory Conference, the Tribunal orders the Second Respondent Brian Choi (also known as Hyung Seok Choi) to pay the sum of $17,327.68, being monies paid to the Applicant which it is not entitled to retain and the sum of $6,760.00 for rectification work, a total of $24,087.68 to the Applicant within 28 days of today.

…

  1. [4]
    We do not understand there to be any issue in relation to Order number 1.
  2. [5]
    Before addressing the substance of the matters raised by Brian Choi in relation to Order number 3, it is convenient to outline the procedural history of this matter which is most conveniently dealt with in chronological order.

Procedural history of the matter

  1. [6]
    On 27 February 2018, Kwangsu Choi filed an Application for commercial building disputes (‘the Original Application’) naming Ms Lee as the only respondent.  By the Original Application, Kwangsu Choi sought ‘restitution’ in the amount of $16,901.43 (plus costs of $326.80).  The material attached to that application included a tax invoice dated 15 February 2017 (‘the tax invoice’) purportedly issued by ‘LNC Management Consulting’ to ‘The Choi Family Pty Ltd’ of 23-25 Railway Terrace Milton in the State of Queensland.  The amount of the tax invoice was $16,901.43, purportedly for carrying out roof repair works which were described in that tax invoice.
  2. [7]
    On 3 April 2018, the Tribunal made directions for the conduct of BDL058-18 as between Kwangsu Choi and Ms Lee.
  3. [8]
    On 10 April 2018, Kwangsu Choi filed an affidavit of service of the Original Application purportedly on ‘LNC Management Consulting’.
  4. [9]
    On 9 May 2018, the Tribunal made directions that Kwangsu Choi’s ‘title’ be corrected (it was originally ‘The Trustee for The Choi Family Trust’) and that the Original Application be listed for a directions hearing not before 9 July 2018.
  5. [10]
    On 3 July 2018, Kwangsu Choi filed a Request for decision by default – unliquidated damages (‘the default application’) against Ms Lee.
  6. [11]
    On 18 July 2018, the Tribunal directed that the default application be decided on the papers on a date to be advised.
  7. [12]
    On 30 July 2018, the Tribunal directed that Kwangsu Choi file a statement of evidence and provide details of any other amount claimed and that the final determination of the Original Application be further considered upon compliance with the first of those directions.
  8. [13]
    On 24 August 2018, Kwangsu Choi filed an affidavit affirmed by him on 22 August 2018 (‘the August 2018 affidavit’).  It purported to name both Ms Lee and Brian Choi as respondents, although Brian Choi had not then been ordered to be joined as a party to the proceeding.
  9. [14]
    On 27 September 2018, the Tribunal directed that the Original Application be listed for a directions hearing on 24 October 2018.
  10. [15]
    On 24 October 2018, the Tribunal directed that:
    1. (a)
      the Tribunal record be corrected to reflect that the respondent to that application is ‘Hyunjung Lee t/as LNC Management Consulting’;
    2. (b)
      Ms Lee file, and give to Kwangsu Choi, a response to the Original Application by 4:00 pm on 7 November 2018;
    3. (c)
      if that direction was not complied with, the Tribunal would make a final decision in the proceeding.
  11. [16]
    On 31 October 2018, the Respondent filed an Application for miscellaneous matters (‘Miscellaneous Matters Application’) requesting that Brian Choi be added or included as a respondent to the Original Application.
  12. [17]
    On 7 November 2018, Ms Lee filed a Response and/or counter-application.
  13. [18]
    On 16 November 2018, the Tribunal directed that:
    1. (a)
      Kwangsu Choi file in the Tribunal an affidavit of service or other evidence that the Miscellaneous Matters Application and the directions were served on Ms Lee and Brian Choi in accordance with QCAT Practice Direction 8 of 2009 by 4:00pm on 30 November 2018;
    2. (b)
      that Ms Lee and Brian Choi file and give to Kwangsu Choi a copy of submissions in response to the Miscellaneous Matters Application by 4:00pm on 14 December 2018;
    3. (c)
      Kwangsu Choi file in the Tribunal and give to Ms Lee and Brian Choi one copy of submissions in reply by 4:00pm on 21 December 2018;
    4. (d)
      that the Miscellaneous Matters Application be determined by a member of the Tribunal on the papers, by written submissions from the parties, and without an oral hearing, not before 4:00 pm on 21 December 2018.
  14. [19]
    On 8 January 2019, the Tribunal:
    1. (a)
      ordered (by Order number 1) that Brian Choi be joined as a respondent (to BDL058-18); and
    2. (b)
      made the following directions (‘the January 2019 directions’):
  1. Kwangsu Choi as trustee for the Choi Family Trust must file in the Tribunal two (2) copies and serve on Hyunjung Lee t/as LNC Management Consulting and Brian Choi (also known as Hyeongseok Choi) one (1) copy of an amended application for commercial building dispute which includes Brian Choi (also known as Hyeongseok Choi) as a Respondent and which sets out the details of the claim by the Applicant against Brian Choi (also known as Hyeongseok Choi), by:

4:00pm on 29 January 2019

  1. Brian Choi (also known as Hyeongseok Choi) must file in the Tribunal two (2) copies and give to Kwangsu Choi as trustee for the Choi Family Trust and Hyunjung Lee t/as LNC Management Consulting (1) copy each of a response to the amended application, by:

4:00pm on 28 February 2019

  1. The application is listed for a Compulsory Conference in Brisbane on a date to be advised.
  1. [20]
    On 14 January 2019, the Registry of QCAT received an email, copied to it, from Isaac Choi (who is the son of Kwangsu Choi).  The email identifies two other email addresses including [email protected] (which has not been disputed as an email address used by Brian Choi).  The email was in the following terms:

Good Afternoon

Attached, please find herewith the following documents.

  1. QCAT Direction Dated 8 January 2019.
  2. The copy of an additional application for commercial building dispute which includes Brian Choi (also known as Hyeongseok Choi) as an Respondent and which sets out the details of the claim by the Applicant against Brian Choi together with the original Respondent Hyunjung Lee t/as LNC Management Consulting.
  3. The copy of an original application for commercial building dispute which sets out the details of the claim by the Applicant against Hyunjung Lee t/as LNC Management Consulting. This was already sent last year but resending it just for your information.

Two (2) copies of the application were also posted through the Australian Express Post in order to file in the Tribunal (Tracking Number: 605 39418045 096)

  1. [21]
    There were three attachments to the email.  The attachment referred to in paragraph 3 of the email was a copy of the August 2018 affidavit (and not the Original Application).  The attachment referred to in paragraph 2 of the email was a further affidavit of Kwangsu Choi dated 12 January 2019.  This affidavit appears to replicate the content of, and annexures to, the August 2018 affidavit.  However, the ‘Respondents’ named in the heading to the affidavit is stated as only ‘Brian (hyeongseok) Choi as an ultimate controller of LNC’.  We shall refer to the material identified in paragraphs 2 and 3 of the email as ‘the January 2019 material’.
  2. [22]
    On 7 February 2019, the Tribunal issued a Notice of a Compulsory Conference.  This appears to have been sent by post and email.
  3. [23]
    On 4 April 2019, the Compulsory Conference was held and the Original Decision was made.  Brian Choi did not attend at the Compulsory Conference.  The orders made also included an order (with the consent of Ms Lee) that Ms Lee pay the sum of $5,151.34 to Kwangsu Choi, in monthly instalments of $700.00 (to a nominated bank account) until the full amount was paid, in full and final satisfaction of all claims which Kwangsu Choi may have against Ms Lee. The Original Decision also included the Orders in relation to Brian Choi set out at [3] above. The Member did not provide reasons for the Original Decision.
  4. [24]
    On 1 May 2019, Brian Choi filed an Application for reopening, correction, renewal or amendment (‘the reopening application’) in respect of the Original Decision and an application to stay the Original Decision.
  5. [25]
    On 8 August 2019, the Member who made the Original Decision made a further decision entitled ‘Final Decision’ by which Brian Choi’s reopening application was dismissed.  The Member provided reasons for that decision.
  6. [26]
    On 2 October 2019, Brian Choi filed an application to set aside the Original Decision (‘the October application’).
  7. [27]
    On 3 December 2019, the Tribunal ordered that the October application would proceed as an application for leave to appeal or appeal the Original Decision subject to Brian Choi filing such an application in the correct form, paying the appropriate filing fee, and filing an application to extend the time to file such application by 4:00pm on 17 December 2019 (failing which the October application would be dismissed).
  8. [28]
    On 17 December 2019, the Appeal Application and an application to extend time were filed.
  9. [29]
    On 23 January 2020, the Tribunal made directions for the filing of an affidavit of service or a form of acknowledgement; for the exchange of submissions and for the hearing and determination of the applications on the papers without an oral hearing.
  10. [30]
    On 16 June 2020, the Tribunal:
    1. (a)
      granted an extension of time to file the Appeal Application;
    2. (b)
      directed the exchange of submissions, further submissions or an application to adduce fresh evidence; and that pending an application for an oral hearing by 4:00pm on 10 August 2020, the Appeal Application would be heard and determined on the papers.
  11. [31]
    No application for an oral hearing was made by either party.

The Original Decision

  1. [32]
    The Original Decision was made pursuant to s 72 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) which provides:
  1. (1)
    If a party to a proceeding does not attend a compulsory conference—
  1. (a)
    the conference may proceed in the party’s absence; and
  1. (b)
    if the person presiding is a member or an adjudicator, and all the parties present agree, the person may—
  1. (i)
    make a decision adverse to the absent party and make any appropriate orders, including orders about costs; or
  1. (ii)
    order that the absent party be removed from the proceeding, and pay another party’s costs reasonably incurred by the other party as a result of the absent party’s involvement in the proceeding.
  1. (2)
    Subsection (1) applies only if the person presiding over the compulsory conference is satisfied the absent party has been given notice of the conference under section 67(2).
  1. (3)
    If a decision or order is made under subsection (1)(b), this Act applies to the decision or order as if—
  1. (a)
    the compulsory conference were a proceeding before the tribunal; and
  1. (b)
    the decision or order were a decision or order made by the tribunal constituted for the proceeding.
  1. (4)
    A person the subject of an order under subsection (1)(b)(ii) may apply to the tribunal to be reinstated as a party to the proceeding.
  1. (5)
    The tribunal may reinstate the person as a party to the proceeding if satisfied the person had a reasonable excuse for not attending the compulsory conference.
  1. [33]
    Brian Choi’s primary contention is that service of the Amended Application was defective and the Member who made the Original Decision did not have jurisdiction to do so.[1]
  2. [34]
    A decision irregularly entered should not be permitted to stay on the record.[2]
  3. [35]
    There was no formal affidavit of service filed by Kwangsu Choi between the date of the January 2019 directions and the Compulsory Conference. The Member who made the Original Decision would have had available to her the material referred to in [20] of these Reasons.
  4. [36]
    Kwangsu Choi subsequently filed an affidavit affirmed on 15 May 2019 (in response to Brian Choi’s reopening application) in which Kwangsu Choi deposed to having served the ‘amended Application’ (and ‘Affidavit’) on Brian Choi on 14 January 2019.[3]
  5. [37]
    Kwangsu Choi subsequently filed an affidavit by Isaac Choi, affirmed on 24 February 2020, in response to Brian Choi’s affidavit sworn on 9 October 2019.  In paragraph 5 of his affidavit, Isaac Choi stated:
  1.  I refer to paragraphs 14, 15 and 16 and say:
  1. (a)
    On or about 14 January 2019, I attempted to serve the amended Application and Affidavit on Brian, by way of registered mail, with Australia Post. I note that I checked tracking details on a regular basis to ensure that the documents were delivered to Brian.
  1. (b)
    On 14 January 2019, I also served the amended Application and Affidavit dated 12 January 2019 on Brian, by way of email. A true copy of the email correspondence to Mr Choi dated 14 January 2018 is annexed hereto and marked as “IIC-5”.
  1. (c)
    On or about 15 January 2019, I caused a search of tracking number of the documents with Australia Post. I note that the search showed that the documents had not been delivered to Brian.
  1. (d)
    Shortly after this, I called Ms McDonald of QCAT and advised her of the situation. She advised me that it was appropriate to only file hard copies of the documents at the Tribunal and that it was possible for me to serve soft copies of the documents to Brian, by way of email, as I was having difficulty serving the documents by post. I understand that QCAT records most telephone conversations. It may be appropriate for QCAT to produce a copy of the same.
  1. (e)
    On or about 28 January 2019, I caused a search of tracking number of the documents with Australia Post. I note that the search showed that the documents were undelivered and returned to the local post office. Given Brian’s conduct in the matter, I assumed that he refused to accept delivery of said documents.   (underlining added)

The issue of service

  1. [38]
    By the January 2019 directions, an amended application was ordered to be served on Brian Choi.  There is a question as to whether the January 2019 material constituted an ‘amended application’ for the purposes of the January 2019 directions.  No specific submissions were directed to this issue and we will proceed on the basis that the January 2019 material constituted such an amended application (which we shall refer to as ‘the Amended Application’).
  2. [39]
    The primary issue in this context is whether Brian Choi was properly served with the Amended Application either by post or by email.  We consider this to have been a necessary anterior step to the making of the Original Decision (in default of appearance) at the Compulsory Conference.  The Amended Application was the originating process insofar as Brian Choi was concerned.
  3. [40]
    By parity of reasoning with the observations of Burns J in Bruder Expedition Pty Ltd v Coles,[4] we consider that a failure to effect proper service of the Amended Application would result in the Original Decision having been irregularly entered.

Service by post?

  1. [41]
    Part 5 of the Queensland Civil and Administrative Tribunal Rules 2009 (‘the Rules’) provide for service of notices or other documents.  The Rules were made pursuant to the rule-making power provided for by s 224 of, and s 7 of Sch 2 to, the QCAT Act.
  2. [42]
    Division 2 of Pt 5 of the Rules is headed ‘Provisions about giving documents’.  Rule 39 provides that, subject to r 38 (which concerns the giving of an application for a minor debt claim) and unless an enabling Act provides otherwise, a document required to be given to an entity in a proceeding may be given to the entity in the ways stated in sub-r 39(1).
  3. [43]
    Sub-rule 39(1)(b) provides for the giving of the document ‘by sending it by post to the relevant address’.  By sub-r 39(2), ‘relevant address’ is defined to mean:

relevant address, for giving a document to an entity, means—

  1. (a)
    the service address in the entity’s address for service; or
  1. (b)
    if the entity does not have an address for service—
  1. (i)
    for posting the document to the entity—the address provided for in the service practice direction to which documents may be posted to the entity if the entity does not have an address for service; or
  1. (ii)
    for leaving a document with someone—the address provided for in the service practice direction at which documents may be left with someone for the purpose of giving the documents to the entity if the entity does not have an address for service.

Examples of addresses for paragraph (b)—

•  the entity’s usual or last known residential or business address

•  the address of the entity’s representative or associate

  1. [44]
    The practice direction referred to is QCAT Practice Direction No 8 of 2009 (‘PD 8/09’).  PD 8/09 provides for personal service of documents.  The address provided for in PD 8/09, for an individual, is the individual’s ‘last known residential or business address’.[5]
  2. [45]
    Section 39 of the Acts Interpretation Act 1954 (Qld) (‘the AIA’) provides:
  1. (1)
    If an Act requires or permits a document to be served on a person, the document may be served—
  1. (a)
    on an individual—
  1. (i)
    by delivering it to the person personally; or
  1. (ii)
    by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
  1. (b)
    on a body corporate—by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
  1. (2)
    Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. (3)
    Nothing in subsection (1)—
  1. (a)
    affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
  1. (b)
    affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection
  1. [46]
    Section 39A of the AIA provides:
  1. (1)
    If an Act requires or permits a document to be served by post, service—
  1. (a)
    may be effected by properly addressing, prepaying and posting the document as a letter; and
  1. (b)
    is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
  1. (2)
    If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
  1. (3)
    Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. [47]
    Sections 39 and 39A of the AIA appear in Pt 10 of the AIA.  In our view, these provisions apply to Pt 5 of the Rules by virtue of s 14(1) of, and sch 1 to, the Statutory Instruments Act 1992 (Qld) (‘the SIA’).[6]
  2. [48]
    It is settled law that evidence of ‘non-receipt’ of a document does not displace the service deemed to have occurred pursuant to s 39A of the AIA.[7]
  3. [49]
    However, although it has not been finally decided at appellate level by the High Court or the Queensland Court of Appeal, we consider that the current state of the law in Queensland supports the view that evidence of ‘non-delivery’ (as distinct from ‘non‑receipt’) is sufficient to displace the presumption in s 39A.[8]  In our view, the distinction between ‘non-delivery’ and ‘non-receipt’ also applies to Pt 5 of the Rules.
  4. [50]
    It is unnecessary to decide the question of whether there was evidence before the Member at the Compulsory Conference of satisfaction of the requirements of s 39A(1)(a) of the AIA,[9] because we consider that the evidence positively establishes that there was ‘non-delivery’ of the Amended Application and, consequently, a failure to effect proper service by post.
  5. [51]
    The affidavit evidence of Isaac Choi is that he caused a search of the tracking number of the documents with Australia Post to be undertaken which showed that the relevant documents were ‘undelivered’ and returned to the local post office (see [35] above).  In our view, such evidence establishes ‘non-delivery’.
  6. [52]
    In Reg v County of London Quarter Sessions Appeals Committee; Ex parte Rossi[10] (which was referred to as a ‘non-delivery’ case in Fancourt)[11], a notice of hearing was posted to the respondent in a registered letter addressed to him at his last or usual place of abode.  The letter was returned to the sender marked ‘Undelivered … No response’.  Denning LJ said:[12]

‘In the present case, therefore, when the case was called on for hearing on September 28, 1954, and Mr Rossi did not appear, it was essential for counsel for Mrs Minors to prove service of the notice in accordance with section 3(1) of the Act.  He had to prove that the clerk of the peace had in due course given Mr Rossi notice of the date, time and place of the hearing.  This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for it could then be assumed that it had been delivered in the ordinary course of post; see section 26 of the Interpretation Act 1889.  But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing.  In short, service had not been effected; and the course should not have entered upon the hearing at all.’ (underlining added)

  1. [53]
    The High Court in Fancourt noted the apparent anomaly in a result that there is ineffective service if there is evidence of non-delivery, but evidence of non-receipt is insufficient to displace the deemed receipt under s 39A of the AIA.  In our view, this apparently anomalous position applies in the present case.
  2. [54]
    In our view, Kwangsu Choi did not effect proper service, by post, of the Amended Application on Brian Choi.
  3. [55]
    The further question is whether service was properly effected by email.

Service by email?

  1. [56]
    Kwangsu Choi deposes[13] to having emailed the Amended Application to the email address [email protected] (which has not been disputed as an email address used by Brian Choi).

Was this effective service?

  1. [57]
    Sub-rule 39(1)(d) of the Rules provides for service by email in some circumstances, as follows: ‘if the entity has an address for service that includes an email address – by emailing it to the entity at that address’.[14] 
  2. [58]
    In the Dictionary to the Rules, ‘statement of address for service’, for an entity, is defined to mean a document or part of a document stating—
  1. (a)
    the entity’s service address; and
  1. (b)
    the entity’s electronic service address (if any).
  1. [59]
    The phrase ‘address for service’ (of an entity) is defined in the Dictionary to the Rules as follows:

‘the service address or electronic service address stated in the entity’s statement of address for service filed in the registry (whether as part of an application, referral or response or under rule 10(2) or 36)’

  1. [60]
    ‘[S]ervice address’ is defined in the Dictionary as follows:

1 An entity’s service address is an address in Queensland where a document required to be given to the entity under the Act, an enabling Act or these rules is to be given.

2 The address for paragraph 1 may be the entity’s address or the address of someone else the entity has authorised to accept documents on the entity’s behalf, including, for example, the entity’s representative.

  1. [61]
    ‘[E]lectronic service address’ is defined in the Dictionary as follows:

1  An entity’s electronic service address is any of the following to which a document required to be given to the entity under the Act, an enabling Act or these rules may be sent—

  1. (a)
    email address;
  1. (b)
    fax number;
  1. (c)
    non-fax or email electronic address.

2 The address or number for paragraph 1 may be the entity’s address or number or the address or number of someone else the entity has authorised to accept documents on the entity’s behalf, including, for example, the entity’s representative.

  1. [62]
    As at 14 January 2019 (and as at the date of the Compulsory Conference), Brian Choi had not filed a statement of address for service under the Rules.  In our view, in those circumstances, service of the Originating Application by email was not permitted under the Rules.  We observe that, ordinarily, the filing of a statement of address for service would follow service of the originating process on a respondent.  It follows that the Amended Application was not properly served under r 39.

Does s 39(1)(a)(ii) of the AIA assist Kwangsu Choi?

  1. [63]
    In Penfolds Projects Pty Ltd v Securcorp Limited,[15] Irwin DCJ expressed the view that, in context, the phrase “or similar facility” in the above subsection was wide enough to extend to email.[16]
  2. [64]
    However, in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd and Anor (‘Conveyor & General’),[17] Philip McMurdo J (as he then was) referred to Penfolds Project and said the following in relation to s 39 of the AIA:[18]

Section 39 makes no specific reference to the sending of a document by email. CGE‘s submissions appear to accept that, in general, a document required to be served under the BCIPA can be served by email. Irwin DCJ so held in Penfolds Projects Pty Ltd v Securcorp Limited, upon the basis that email is a “similar facility” within s 39(1) of the Acts Interpretation Act. With respect, that interpretation is open to doubt. The various means of service which are specified in s 39(1) are each described as a means of conveying a document to a particular place, such as a place of residence or business or a certain office of a body corporate. That is not a characteristic of an email transmission. As Austin J observed in Austar Finance Group Pty Ltd v Campbell, when comparing an email with a facsimile transmission, “an email is transmitted to and electronically stored by a server which is normally not located in the receiver‘s premises, and positive action is needed on the part of the receiver to read the email (by accessing it through his or her computer) and to obtain a hard copy (by directing the computer to send the email to the receiver‘s printer)”. (citations omitted)

  1. [65]
    We would add to the observations of Austin J that emails may be accessed through electronic devices such as smart phones and portable electronic devices e.g. an iPad and that it cannot be assumed that a person with an email address will necessarily have a computer at their residence.
  2. [66]
    We respectfully share the doubt expressed by Philip McMurdo J and we conclude that s 39(1)(a)(ii) of the AIA does not encompass the sending of an email.  While we consider that the words ‘or similar facility’ are referable only to the word ‘facsimile’, rather than the collective ‘post, telex, facsimile’, it makes no difference to our conclusion.  Reading s 39 as a whole, and having regard to the matters identified by Philip McMurdo J, we consider that an email is not a ‘similar facility’ to any of post, telex or facsimile.
  3. [67]
    We also consider that s 11 the Electronic Transactions (Queensland) Act 2001 (Qld) (‘the ETA’) does not assist Kwangsu Choi.[19]  That section provides:
  1. (1)
    If, under a State law, a person is required to give information in writing, the requirement is taken to have been met if the person gives the information by an electronic communication in the circumstances stated in subsection (2).
  1. (2)
    The circumstances are that—
  1. (a)
    at the time the information was given, it was reasonable to expect the information would be readily accessible so as to be useable for subsequent reference; and
  1. (b)
    the person to whom the information is required to be given consents to the information being given by an electronic communication.
  1. [68]
    There is no suggestion that Brian Choi had given his consent to receipt of any court documents in this matter, in particular the Amended Application, by electronic communication (see s 11(2)(ii) of the ETA).

Does r 41 of the Rules apply?

  1. [69]
    A further issue is whether r 41 of the Rules could be relied upon to establish proper service.  This Rule provides:
  1. (1)
    This rule applies if—
  1. (a)
    for any reason, a document is not given in a way provided in an enabling Act or these rules but the document or a copy of it came into the possession of the entity who was to be given the document; and
  1. (b)
    the tribunal is satisfied on evidence before it that the document came into the entity’s possession on or before a particular day.
  1. (2)
    The tribunal may, by order, decide that, for the Act, an enabling Act and these rules, the entity is taken to have been given the document on the day it came into the entity’s possession or a later day stated in the order.
  1. [70]
    In our view, in order to establish service under this rule it would have been necessary for there to be a finding that the rule was satisfied and an order made to that effect at the time of the Original Decision.  No such order was made and, in our view, r 41 could not be relied upon by Kwangsu Choi.
  2. [71]
    In any event, such an order would have required evidence upon which the Tribunal could have been satisfied of the matters specified by sub-r 41(1)(b). Neither the Rules nor the QCAT Act provide clarification as to the meaning of the phrase ‘came into the possession of the entity’.  However, in the absence of any authority, we consider that, in the case of an email, something more would be required by way of proof than merely sending an email to an email address that can be linked to the respondent.  In our view, to do so would not, in and of itself, establish that the email and the attachment came into the possession of the person to whom the email was purportedly sent.  On our reading of the material, there is no admissible evidence that the email attaching the Amended Application was in fact accessed by Brian Choi prior to the Compulsory Conference.

Kwangsu Choi’s further submission

  1. [72]
    Finally, the Trustee submits that service of the Amended Application was effected on 21 November 2018.[20]  This date appears to be a reference to the email sent attaching the Original Application, the directions of the Tribunal on 16 November 2018 and the Trustee’s affidavit filed on 22 August 2018 (incorrectly identified in the submissions as 22 August ‘2019’).[21]
  2. [73]
    With great respect to Kwangsu Choi’s argument, Brian Choi was not joined to the proceeding until the January 2019 directions were made.  Any previous document served on him prior to the date could not constitute proper service of the Amended Application.
  3. [74]
    For the above reasons, we consider that:
    1. (a)
      the Amended Application was not properly served on Brian Choi prior to the Compulsory Conference; and
    2. (b)
      in the absence of proper service, the Original Decision was irregular and should be set aside.
  4. [75]
    Accordingly, leave to appeal should be granted and the appeal should be allowed.
  5. [76]
    In the circumstances, it is appropriate for the Tribunal to rehear the matter on its merits. It should be remitted to a differently constituted Tribunal for reconsideration after further material has been filed. As the application for leave to rely upon fresh evidence is not relevant to the basis upon which the appeal has been allowed, it is refused in these proceedings. It will be for the Tribunal to direct the filing of further material before the hearing of the proceeding on its merits.
  6. [77]
    While this makes it unnecessary to address the second aspect of Brian Choi’s submissions, we propose to briefly make some observations about this matter.

Observations about Brian Choi’s defence on the merits

  1. [78]
    Given that the matter is to proceed further in the Tribunal, we express no concluded view about the matters of defence raised by Brian Choi. However, we make the following observations.
  2. [79]
    The amount ordered against Brian Choi in the Original Decision reflects the following amounts:
    1. (a)
      $17,327.68 being the total of three amounts paid by Kwangsu Choi, namely, $16,901.43[22] as the amount paid to ‘LNC Management Consulting’ for purported repairs to the roof of the relevant commercial premises situated in Brisbane (‘the repair works’) together with separate amounts of $305.25 and $121.00 for purportedly planning, arranging and managing the repair works;
    2. (b)
      $6,760.00 as the cost of the rectification works to the roof carried out by Roof Leak Services.
  3. [80]
    In relation to Order number 3 of the Original Decision, the reference to the sum of $17,327.68 being ‘monies paid to the Applicant which it is not entitled to retain’ is, with respect, unclear. Plainly no monies were paid ‘to’ the ‘Applicant’ (in the primary proceeding, being Kwangsu Choi). If it was intended that the reference to ‘to’ should have been ‘by’, that raises the question of the ‘it’ that was not entitled to retain the sum of $17,327.68. Both of the named respondents to the original proceeding were individuals and the word ‘it’ would not be apposite in that regard.
  4. [81]
    The reference to a lack of entitlement to the relevant moneys also brings into focus what we consider to be Brian Choi’s primary submission that there was no evidence which demonstrated that the sum of $17,327.68 had changed hands from Kwangsu Choi to Brian Choi or from Ms Lee to Brian Choi.[23]
  5. [82]
    On the Appeal Application, Kwangsu Choi submits that LNC Management Consultant Pty Ltd was the ‘First Respondent’ in the ‘Original Proceedings’.[24] However, the original respondent was not LNC Management Consultant Pty Ltd but Ms Lee (‘t/as LNC Management Consulting’).
  6. [83]
    The August 2018 affidavit of Kwangsu Choi evidenced the following (amongst other matters):
    1. (a)
      the tax invoice for $16,901.43 was purportedly issued by ‘LNC Management Consulting’;[25]
    2. (b)
      that the payment details in the tax invoice identified the payee as ‘LNC Management Consulting’;[26]
    3. (c)
      that the paying bank confirmed payment of $16,901.43 to ‘LNC Management Consulting’ at a branch corresponding with the branch identified in the tax invoice (no account number was identified);[27] and
    4. (d)
      that Ms Lee was recorded as the holder of the business name ‘LNC Management Consulting’.[28]
  7. [84]
    In our respectful view, on the material before the Member who made the Original Decision there was insufficient evidence to establish that Brian Choi was liable to pay to Kwangsu Choi (at least) the sum of $17,327.68.  There was no evidence, as Brian Choi submits, that he received such sum from Kwangsu Choi directly or via Ms Lee.  If any inference could be drawn from evidence before the Member concerning the payment made to ‘LNC Management Consulting’, we consider that the inference would more likely support a finding that the money was received to the benefit of Ms Lee as the person carrying on the business of ‘LNC Management Consulting’ rather than Brian Choi.  This matter plainly raised a triable issue; the then available evidence did not warrant the making of Order number 3.
  8. [85]
    We respectfully consider that on the material currently available it appears that Order number 3 ought not to have been made even if service had been properly effected.

Conclusion

  1. [86]
    For the above reasons, we make the following Orders: 
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The application for leave to rely upon fresh evidence is refused.
  4. Order 3 of the decision of the Tribunal dated 4 April 2019 is set aside.
  5. The matter be returned to a differently constituted Tribunal for reconsideration as between Brian Choi (also known as Hyung Seok Choi) and Kwangsu Choi as trustee for the Choi Family Trust.

6.(i)Either party may file in the Tribunal and serve on the other party any application for costs and written submissions in support, no longer than 5 pages, by:

4:00pm on 22 February 2021;

  1. (ii)
    If a party files an application for costs, the other party must file and serve any submissions in response of no more than 3 pages, by:

4:00pm on 15 March 2021;

  1. (iii)
    Any application for costs will be heard and determined on the papers, not before:

16 March 2021.

Footnotes

[1]  Applicant's written submissions, paragraphs 5.3 and 5.4.  See also paragraphs 12-16 of the Applicant's affidavit affirmed on 2 October 2019.

[2]Cooper v O'Connor [2016] QCATA 180 at [66].

[3]  Paragraph 3(b) and Annexure ‘KC-3’.

[4]  [2020] QSC 049 at [20]-[21].

[5]  Although not material to this application, we note that the Example provided in Rule 39(2) also includes the entity’s ‘usual' address which reference does not appear in PD 8/09.

[6]  We consider the Rules to be a ‘statutory instrument’ for the purposes of the SIA by virtue of s 7 of that Act.

[7]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96-97 (‘Fancourt’).

[8]  See, e.g., Grant Thornton (Qld) Pty Ltd v Green Global Technologies (‘Grant Thornton’) [2009] QSC 262 at pp 5-6; Re Pacific Mobile Phones Pty Ltd [2008] QSC 210 at [13]-[23] esp. at [23]; Lainor Investments Pty Ltd v Sunbuster Solar Shades Pty Ltd [2020] QDC 059 at [161].

[9]  See e.g. Grant Thornton at pp 7-8.

[10]  [1956] 1 QB 682.

[11]  See p 96.

[12]  At p 692.  See also Morris LJ at p 697.

[13]  Kwangsu Choi’s affidavit of 15 May 2019, paragraph 3(e).

[14]  We also note that there was no direction by the Tribunal for service by email: see r 39(1)(h).

[15]  [2011] QDC 77.

[16]  Ibid at [232].

[17]  [2015] 1 Qd R 265.

[18]  At [25].

[19]  This provision was discussed in Conveyor & General at [26]-[28].

[20]  Respondent’s Submissions dated 29 July 2020, paragraph 24d.

[21]  Respondent’s Submissions dated 29 July 2020, paragraph 12.

[22]  This amount corresponds with the amount originally claimed.

[23]  Paragraph 6.5 of Brian Choi’s submissions on the Appeal Application

[24]  See paragraph 26 of Kwangsu Choi’s submissions on the Appeal Application.

[25]    Exhibit 1.

[26]   Exhibit 1.

[27]   Exhibit 2.

[28]   Exhibit 6.

Close

Editorial Notes

  • Published Case Name:

    Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust

  • Shortened Case Name:

    Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust

  • MNC:

    [2021] QCATA 16

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Lumb

  • Date:

    29 Jan 2021

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
Bruder Expedition Pty Ltd v Coles [2020] QSC 49
2 citations
Jump To
Cite 1 - [2020] QSC 49
Cite 2 - [2020] QSC 49
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd[2015] 1 Qd R 265; [2014] QSC 30
2 citations
Jump To
Cite 1 - [2015] 1 Qd R 265
Cite 2 - [2015] 1 Qd R 265
Cooper v O'Connor [2016] QCATA 180
2 citations
Jump To
Cite 1 - [2016] QCATA 180
Cite 2 - [2016] QCATA 180
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
2 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87
Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262
2 citations
Jump To
Cite 1 - [2009] QSC 262
Cite 2 - [2009] QSC 262
Lainor Investments Pty Ltd v SunBuster Solar Shades Pty Ltd [2020] QDC 59
2 citations
Jump To
Cite 1 - [2020] QDC 59
Cite 2 - [2020] QDC 59
Penfold Projects Pty Ltd v Securcorp Limited [2011] QDC 77
2 citations
Jump To
Cite 1 - [2011] QDC 77
Cite 2 - [2011] QDC 77
R v County of London Quarter Sessions Appeals Committee; ex parte Rossi (1956) 1 QB 682
2 citations
Jump To
Cite 1 - (1956) 1 QB 682
Cite 2 - (1956) 1 QB 682
Re Pacific Mobile Phones Pty Ltd [2008] QSC 210
2 citations
Jump To
Cite 1 - [2008] QSC 210
Cite 2 - [2008] QSC 210

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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