Man v Body Corporate for Silver Sea Resort & Spa Cts 35480
[2024] QDC 111
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- Man v Body Corporate for Silver Sea Resort & Spa Cts 35480[2024] QDC 111
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Man v Body Corporate for Silver Sea Resort & Spa Cts 35480[2024] QDC 111
Man v Body Corporate for Silver Sea Resort & Spa Cts 35480[2024] QDC 111
DISTRICT COURT OF QUEENSLAND
CITATION: | Man v Body Corporate for Silver Sea Resort & Spa Cts 35480 [2024] QDC 111 |
PARTIES: | MAN (Applicant) v BODY CORPORATE FOR SILVER SEA RESORT & SPA CTS 35480 (Respondent) |
FILE NO/S: | 194 of 2023 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Southport |
DELIVERED ON: | 2 April 2024 (ex tempore) |
DELIVERED AT: | Southport |
HEARING DATE: | 2 April 2024 |
JUDGE: | Holliday KC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SET ASIDE SUMMARY JUDGMENT – APPEAL – whether leave to appeal should be granted – whether the magistrates court should have granted the applicant’s application to set aside default judgement |
LEGISLATION: | Magistrates Court Act 1921 (Qld) s 45 Queensland Civil and Administrative Act 2009 sch 3 Dictionary |
CASES: | American Express International Inc v Hewitt [1993] 2 Qd R 353 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 |
COUNSEL: | The appellant appeared on his own behalf B Strangman for the Respondent |
SOLICITORS: | The appellant appeared on his own behalf Mathews Hunt Legal for the Respondent |
Introduction
- [1]This is an application by the applicant for leave to appeal a decision of an Acting Magistrate dated 21 June 2023 dismissing the applicant’s application to set aside default judgment and award costs in favour of the respondent.
- [2]In order to succeed in this appeal the applicant must firstly obtain leave to appeal.
Background
- [3]On 3 February 2021 the respondent commenced proceedings against the applicant for non-payment of body corporate fees. The proceedings related to levies up to 30 April 2021. A settlement conference took place on 16 November 2021, which was successful. The applicant agreed to pay the respondent the sum of $8500.00 in full settlement of the claim, the claim being for levies up to 30 April 2021.
- [4]Levies continued to accrue after 30 April 2021.
- [5]On 21 September 2022 the respondent filed a claim and statement of claim in the Magistrates Court of Queensland at Southport for non-payment of body corporate levies for the period 1 May 2021 to 31 March 2023 in the sum of $6,678.20 (21 September 2022 statement of claim). The applicant was served with the 21 September 2022 statement of claim on 22 November 2022.
- [6]No Notice of Intention to Defend was filed by the applicant, and on 22 March 2023, the learned Magistrate gave default judgment to the respondent in the sum of $10,771.82 (this amount included the levies owed, recovery fees, costs and interest).
- [7]On 9 May 2023, the applicant filed an application to set aside default judgment. On 21 June 2023, the learned Acting Magistrate dismissed the application and ordered the applicant pay the respondent’s costs of the application fixed in the amount of $7162.50.
The Notice of Appeal subject to leave and position of the Applicant
- [8]On 7 July 2023, the applicant filed a Notice of Appeal, subject to leave, against the order of the Acting Magistrate of 21 June 2023. Under the heading of appeal grounds, if leave is granted, the applicant sets out matters which, whilst not clearly articulated, appear to be able to be summarised as:
- There is a settlement conference agreement (File M163/21) which the respondent did not comply with;
- The amount of $17, 934.32 is “unfair” or “unreasonable”.
- [9]The applicant filed an outline of argument on 8 August 2023 and a supplementary outline of argument on 5 February 2024. The submissions focus on the contention that the respondent did not follow the settlement agreement and allegations of fraud on the part of the respondent and the respondent’s legal representatives. The applicant also contends that he was not given notice of the hearing date (this appears to be the 22 March 2023 date, but also later refers to the 21 June 2023 date, where he did appear); he should have been afforded an interpreter on 21 June 2023; and the respondent misled the court. The applicant proposes paying an amount of $7,344.88, which is the “real amount for the body corporate payment. I cannot accept their un-legal charge by suspect fraud.”
Leave to appeal is required
- [10]Section 45 of the Magistrates Court Act 1921 (Qld) provides that a party dissatisfied with the judgment or order of a Magistrates Court may appeal to the District Court but where the amount involved is less than the “minor civil dispute limit” leave is required and such leave will only be granted where there is some “important principal of law or justice involved”.
- [11]Minor civil dispute limit is defined to mean the amount prescribed under the Queensland Civil and Administrative Act 2009 (QCAT Act). The Schedule 3 Dictionary contained in the QCAT Act defines a minor civil dispute as meaning a claim to recover a debt or liquidated demand of money of up to the prescribed amount. Prescribed amount is defined as meaning $25,000.00.
- [12]The first hurdle that the applicant faces is that he must obtain leave to appeal, which requires him to demonstrate that some “important principle of law or justice [is] involved”.
- [13]An important principle of justice requires that there be a question going beyond the consequence of the decision upon the immediate parties to the actual matter. As Davies JA stated in American Express International Inc v Hewitt [1993] 2 Qd R 353 at 353.40:
“...it is not speaking merely of the injustice which a party will generally suffer when a decision is made against the party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision…merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.”
Leave to appeal is not granted
- [14]The decision in the present case, which was to dismiss an application to set aside default judgment with costs, goes no further than the consequences of that decision upon the applicant and the respondent. It does not involve an important principle of law or justice.
- [15]Whilst not strictly necessary to consider, it is also clear in the present case that the learned Acting Magistrate did not err in dismissing the application to set aside default judgment. The test to be applied is set out by Atkinson J in Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 at [13]:
“the matters to be considered on an application to set aside a default judgment are whether the defendant has given a satisfactory explanation of the failure to defend; whether the defendant’s delay in making the application to set aside is not such as to preclude it from obtaining relief; and whether the defendant has a prima facie defence on the merits. The decision whether or not to set aside a default judgment is discretionary. An affidavit in support of an application to set aside judgment entered into in default of appearance to a writ of summons must set out all the defences on which the defendant intends to rely and briefly set out the facts by which the defendant seeks to establish such defences. A mere statement by the defendant that he or she has a good defence is not sufficient to justify a review of the exercise of judicial discretion. The defendant must demonstrate a “very compelling reason” for the failure to appear and that it has a plausible defence either in law or in fact. Before allowing a defendant to come in and defend, the court should have before it material which enables it to say how it came about that the defendant found itself bound by a judgment regularly entered; that the defendant genuinely desires to be allowed to come in and present its case and that issues are raised in such a form as to require serious consideration of the defence put forward.”
- [16]The learned Acting Magistrate applied the correct test to the present case. When asked by the learned Acting Magistrate why he had not filed a defence, the applicant replied “I – I- I don’t understand it, sorry, But anyway, this case is special the COVID-19 lockdown killed it, they did not provide the service…”.[1] As such, it was open for the learned Magistrate to determine that the applicant had not given a satisfactory explanation for the failure to file a defence. Further, it was open for the learned Acting Magistrate to determine that the defendant does not have a prima facie defence on the merits. The contentions of the applicant are ill-founded and centre around a previous settlement conference agreement. As was explained by Mr Strangman below[2] and in today’s proceeding, which is supported by the material, the 21 September 2022 statement of claim related to non-payment of levies that were not covered by the settlement agreement for previous non-payment of levies. The settlement agreement related to non-payment of levies for the period up to 30 April 2021. The 21 September 2022 statement of claim related to non-payment of body corporate levies for the period 1 May 2021 to 31 March 2023. The cost component awarded on 21 June 2023 by the learned Acting Magistrate of $7162.50 was supported by affidavit material and was at the lower end of that contended for by the respondent.
- [17]I also do not consider there is any merit in the applicant’s contention that he did not receive a fair hearing on 21 June 2023 as he was not afforded an interpreter. The submissions being advanced on this application, in two written outlines of submission and in oral submissions are the same as advanced before the Acting Magistrate. The applicant has been able to articulate those points, both below and on this application. Lastly, there is no merit in the applicant’s contention that the respondent misled the court. The submissions of the respondent were supported by affidavit material including the relevant body corporate levy notices.
- [18]For the reasons I have given, leave should not be granted.
Orders
- [19]The orders of the court are:
- 1.The application for leave to appeal is refused.
- 2.I will hear the parties on the question of costs.