Gatton & Laidley Real Estate v Hayes Views Pty Ltd [2017] QCAT 108 (27 January 2017)

Last Updated: 20 April 2017

CITATION:	Gatton & Laidley Real Estate v Hayes Views Pty Ltd [2017] QCAT 108
PARTIES:	Noel Trevor Thornberry t/as Gatton & Laidley Real Estate (Applicant)
	v
	Hayes Views Pty Ltd CAN 118289553 (Respondent)
APPLICATION NUMBER:	MCDO1966-16
MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Adjudicator Anna Walsh
DELIVERED ON:	27 January 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	Application to set aside decision by default is refused.
CATCHWORDS:	Procedure – Minor Civil Dispute – Decision by default – whether decision should be set aside Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 51 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

[1] On 23 September 2016 the Applicant filed an application for minor civil dispute – minor debt claim. The claim was for unpaid commission in respect of the sale of a property at Regency Downs.
[2] On 25 November 2016 the Applicant filed a Request for decision by default and on 2 December 2016 the Tribunal made an order that the Respondent pay the Applicant $4,181.22.
[3] On 10 January 2017 the Respondent filed an Application to set aside the default decision. The parties were invited to make submissions and after considering the material I refused the Application. The Respondent has requested reasons for that decision.

Background

[4] On 21 June 2015 the parties signed a Form 6 – Appointment and reappointment of a property agent, resident letting agent or property auctioneer, whereby the Respondent appointed the Applicant to sell a number of vacant blocks of land at Regency Downs on its behalf.
[5] The Applicant says that on 31 October 2015 it introduced a purchaser for one of the lots to the respondent. A contract drafted on 2 November 2015, was terminated on 19 January 2016 under the finance clause.
[6] The same parties entered into a second contract on 1 February 2016. The Applicant’s name was not included in the second contract as the agent. Settlement took place on 22 February 2016 and on 23 February 2016 the Applicant sent its invoice for commission, calculated pursuant to the terms of its appointment on the basis it was the effective cause of sale.
[7] The Respondent did not pay the invoice and the Applicant engaged a lawyer. On 26 July 2016 the Respondents lawyer advised that the Respondent would defend any claim. A further letter sent to the Respondents lawyer on 2 August 2016 was ignored.
[8] On 13 September 2016 the Applicant’s sent a draft QCAT application to the Respondent to which there was no response.
[9] On 15 September 2016 the Respondents lawyers advised they were no longer instructed.
[10] The Application was filed on 23 September 2016 and served on the Respondent on 21 October 2016.
[11] Mr Philip Davies a director of the Respondent says that before the decision by default was entered, he contacted the Applicant and after his conversation had anticipated a mediation would be arranged.
[12] In an affidavit sworn on 23 January 2017, Mr Noel Thornbury a director of the Applicant, says he was contacted by Mr Davies once and that was on 29 October 2017. He says there was no mention of mediation and Mr Davies advised him to walk away. He recollects the call ended with Mr Davies saying he would get back to him, but he did not.
[13] On 11 November 2016 the Applicant’s solicitors hand-delivered a letter to the Respondents registered office. The letter contained information that the Respondent was required to file a response prior to 18 November 2017 and warned that if no response was filed by that date, the Applicant would apply for a decision by default.
[14] On 17 November 2016 the Respondent wrote to the Applicant denying the claim in the full. No basis for the denial was included in the letter.
[15] The same day the Applicant’s solicitors responded, saying the letter did not constitute a response, reminded the Respondent of the requirement for it to file a response and again warned that if no Response was filed within the time allowed it would apply for a decision by default. No reply was received to this letter.
[16] The Application for a decision by default was filed on 25 November 2016 and the Order made on 2 December 2016. As at the date of the Order the Respondent had not filed a Response. The Respondent says it did not file a Response because after the phone call on 29 October 2016, Mr Davies had anticipated there would be a mediation.
[17] The Respondent says it has a defence to the claim as the Applicant was not the effective cause of sale.

The Tribunal’s power to set aside default judgment

[18] Section 51 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides the Tribunal with a wide discretion whether to set aside a decision by default.
[19] There are a number of factors that are generally considered by decision makers in determining whether a judgment should be set aside. These are:

1. Whether or not the Respondent has a good reason for not filing a Response
2. Any delay in bringing an application to set aside

100. The Respondents conduct in the proceedings before and after the decision

4. The Respondents good faith
5. Whether the Respondent has raised a defence on the merits
6. Whether the Applicant would be severely prejudiced if the judgment was set aside.

[20] In Garland v Butler McDermott Lawyers^[1] Wilson J listed these factors as applicable considerations and then more particularly referred to the exercise of the discretion in QCAT and specifically in its Minor Civil Disputes jurisdiction:

The discretion arising under s 50 of the QCAT Act and, in particular, in the Minor Civil Disputes jurisdiction may, arguably, involve a slightly different approach. That jurisdiction is plainly intended, under the QCAT Act, to offer speedy justice in claims involving, in comparative terms against the Courts hierarchy, the smallest sums about which citizens are in dispute.

Two other factors may also influence the nature of the discretion: the first is the emphasis, in the QCAT Act, on requirements that the Tribunal act quickly, and with as little formality and technicality as is consistent with a fair and proper consideration of the issues before it.^[2]

The second is the decision of the High Court in AON v ANU^[3] in which the Court said^[4] that questions of delay, and cost for society in general, are to be regarded as important considerations in the exercise of a court’s discretion to excuse procedural failings.^[5]

[21] If judgment has been entered irregularly it must be set aside, but there is no suggestion of that here. The Form 3 contains a clearly marked warning that a Response must be filed within 28 days or the Applicant may apply for a decision by default. The Applicants solicitors reminded the Respondent of this requirement on two occasions and warned it would apply for a default decision. Despite receiving the Application on 21 October 2016 the Respondent had not filed a Response by 2 December 2016 when the decision by default was made.
[22] The reason proffered for not filing a Response, namely it thought there would be a mediation, is inconsistent with the letters sent to the respondent on 11 and 17 November 2016. In fact the Respondent did not contact the Applicant about a mediation even after receiving these two letters.
[23] The Respondent was given every opportunity to put forward his Response to the claim but chose not to. Section 3 of the QCAT Act requires the Tribunal to deal with matters in a way that is fair, just economical and quick. There is no satisfactory explanation for the delay and the fact that the Respondent now raises a possible defence is not a sufficient reason in the circumstances for the decision to be set aside.
[24] Application to set aside is refused.

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^[1] [2011] QCATA 151.

^[2] QCAT Act ss 3,4 and 28.

^[3] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

^[4] Ibid [214] – [215].

^[5] Garland v Butler McDermott Lawyers [2011] QCATA 151, [13] – [15].