The Old Bridge Sports Club Inc v Octivo Pty Ltd
[2025] QCATA 16
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- Unreported Judgment
- The Old Bridge Sports Club Inc v Octivo Pty Ltd[2025] QCATA 16
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The Old Bridge Sports Club Inc v Octivo Pty Ltd[2025] QCATA 16
The Old Bridge Sports Club Inc v Octivo Pty Ltd[2025] QCATA 16
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | The Old Bridge Sports Club Inc v Octivo Pty Ltd [2025] QCATA 16 |
PARTIES: | THE OLD BRIDGE SPORTS CLUB INC (applicant/appellant) v OCTIVO PTY LTD (respondent) |
APPLICATION NO/S: | APL325-23 |
ORIGINATING APPLICATION NO/S: | MCDQ0027/22 (Holland Park) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 27 February 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: | IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where application for a minor civil dispute minor debt given a default judgment in the absence of a response having been filed by respondent company – where application to set aside default judgment was dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 50, s 51, s 143, s 145, s 146 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Cachia v Grech [2009] NSWCA 232 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Ericson v Queensland Building Services Authority [2013] QCA 391 Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 29 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Penfold v Firkin & Balvius [2023] QCATA 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES & REPRESENTATION: | 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
What is this application about?
- [1]On 12 May 2021, The Old Bridge Sports Club Inc (the Club), a community football club, placed an order for custom tracksuits with Octivo Pty Ltd (Octivo), a family-owned sportwear business, to the value of $9,629.40.
- [2]The Club says the order was time-sensitive, the tracksuits being required for the upcoming football season, and that its members were promised delivery of the tracksuits within three to four weeks. When, despite several follow-ups and broken promises, the tracksuits had not been supplied by 30 June 2021, the Club cancelled the order with Octivo and secured tracksuits from another supplier.
- [3]Octivo say the tracksuit delivery was delayed by Covid-19 supply-chain issues, as the order was coming from China. Following cancellation of the order, they pursued the Club for payment by filing an application for a minor civil dispute – minor debt on 28 April 2022 (MCDQ27/22) and, when the Club did not file a response to the application, default judgement was entered against the Club by a decision made on 10 February 2023, pursuant to section 50 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [4]In seeking to have the default judgment set aside, the Club says its President, Mr Sadikovic handled all dealings with Octivo, and that the envelope serving Octivo’s application was delivered on 31 May 2022 was left unopened on Mr Sadikovic’s desk at the Club premises until he returned from an overseas trip, having departed on 24 May 2022 and returned to Australia on 31 August 2022.
- [5]Under section 51 of the QCAT Act the Tribunal has power to set aside or amend a decision by default given under section 50 of the Act.
- [6]By a decision made 8 March 2023 the Tribunal below refused the Club’s application to set aside the default decision. The Club want to appeal that refusal, but require leave to do so.[1]
- [7]In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
- there is a reasonably arguable case of error in the primary decision;[2]
- there is a reasonable prospect that the appellant will obtain substantive relief;[3]
- leave is need to correct a substantial injustice caused by some error;[4] or
- 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]
An arguable case of error
- [8]The grounds of the application for leave to appeal or appeal, summarised, are that:
- the reasons given for the refusal to set aside the default judgement were inadequate, and
- insufficient consideration was given to the merits of the Club’s defence to the claim when the application to set aside the default decision was refused.
- [9]In the circumstances of this proceeding, these grounds can be addressed together.
- [10]The test to be applied in considering whether to set aside a decision by default is set out in Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151 at 11 to 14 as follows:
- whether or not there is a good reason for the respondents’ failure to file the response,
- any delay in bringing the application,
- the respondents’ conduct in the proceedings before and after judgment,
- the respondents’ good faith,
- whether the respondents have raised a defence on the merits, and
- whether the applicant would be severely prejudiced if the judgment was set aside.
- [11]The complete reasons given by the learned Adjudicator for refusing to set aside the default judgment on 6 March 2023 were:
There was no sufficient evidence provided to set aside the default decision.
- [12]Denial of natural justice is an error of law.[6] Failure to give adequate reasons is an error of law if it denies the disappointed party natural justice.[7] As Dr Forbes has observed [8] a failure to give reasons “... adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?”.
- [13]It is also an error or law for a decision-maker to make a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance.[9]
- [14]Respectfully, the reasons given by the learned Adjudicator did little more than simply restate the decision itself. The only inference to be drawn is that none of the factors set out in Garland were considered, and no other test was applied when making the decision to refuse to set aside the default judgment. Failing to consider the evidence and submissions of the parties and to apply the relevant test in exercising the Tribunal’s discretion whether or not to set aside a default judgment is an incurable error of law.
Leave to appeal, and appeal
- [15]The resulting denial of natural justice means leave to appeal should be, and is granted, and the appeal itself should also be, and is, allowed.
- [16]
Substituted decision
- [17]Consistent with the objects of the QCAT Act which include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,[12] in the interests of expediency, I elect to set the decision aside and to substitute it with a decision setting aside the default judgment having regard to the following:
- The evidence filed on the application to set aside supports an arguable case that the Club:
- had good reason for not filing a response on the application, namely the prolonged absence overseas of the only person within the Club who dealt with Octivo and who responded to legal matters in the nature of Octivo’s claim,
- otherwise was quickly responsive in all other dealings with Octivo and with the Tribunal in these proceedings supporting a conclusion that the failure to respond to the application was not typical of the conduct of the Club,
- acted quickly when the decision came to their attention by applying to set it aside, namely within thirteen days of the decision being made,
- have raised an arguable defence on the merits, namely that Octivo did not deliver the tracksuits within a reasonable time, or within the contracted delivery time, and/or that Octivo confirmed the order cancellation without penalty in reply correspondence to the Club, and
- will suffer a significant financial burden if the default decision is left to stand without having been argued on the merits, as the order was to be paid from member funds and those funds were returned to members when the order was cancelled.
- Octivo will have to attend a hearing, and there has been some delay in the proceedings to date, but they will suffer no substantial prejudice if the matter is returned for hearing that cannot be compensated by an award of interest, should their application in a minor civil dispute -minor debt succeed.
- On balance, the interests of justice favour the setting aside of the default decision and returning the dispute to the Tribunal below to be considered on its merits.
- [18]Section 61 of the QCAT Act permits the Tribunal to waive compliance with procedurals requirement under the QCAT Act or rules. As the Club has already set out its response to Octivo’s claim in material filed in the minor debt application and submissions on this application for leave to appeal or appeal, requiring them to now file a response to the application for minor civil dispute – minor debt would unnecessarily delay the proceeding and put the parties to additional effort and expense. The interests of informality and expediency are best served by waiving this requirement and remitting the dispute directly to a hearing on its merits.
Orders
- [19]The decision of the Appeal Tribunal is therefore that:
- Leave to appeal is granted.
- The appeal is allowed.
- The decision of 3 March 2023 is set aside and substituted with a decision that:
- The application to set aside a default decision is granted.
- The default decision made 10 February 2023 is set aside.
- The requirement for The Old Bridge Sports Club Inc to file and serve a response is waived.
- The submissions filed by The Old Bridge Sports Club Inc in APL325-23 will travel with MCDQ 27/22 and be considered as its response filed in the minor civil dispute proceeding.
- The application in a minor civil dispute – minor debt filed 28 April 2022 (MCDQ 27/22 – Holland Park) is to be listed for hearing at the earliest date available.
Footnotes
[1] s 143(3), Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act); Application for leave to appeal or appeal filed 3 October 2023.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).
[3] Cachia v Grech [2009] NSWCA 232, 2.
[4] QUYD (n 4).
[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] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[7] Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 29, [26].
[8] Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2.
[9] Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 40-42.
[10] QCAT Act, s 146(c).
[11] Provided that in doing so, the substituted decision can resolve the matter and does not entail any rehearing of the evidence: See Ericson v Queensland Building Services Authority [2013] QCA 391 at [25].
[12] QCAT Act (n 2) s 3.