Hamilton Roofing (Aust) Pty Ltd v Crocker & Build Restore Pty Ltd

[2014] QCAT 211

CITATION: Hamilton Roofing (Aust) Pty Ltd v Crocker & Build Restore Pty Ltd [2014] QCAT 211

PARTIES:	Hamilton Roofing (Aust) Pty Ltd (Applicant)
v
Lee Anthony Crocker Build Restore Pty Ltd ABN 97 108 873 543 (Respondent)

APPLICATION NUMBER:   MCD866/13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 28 February 2014

DELIVERED AT: Southport

ORDERS MADE:

1.   The application to set aside the Decision by Default filed by the Respondent on 14 February 2014 is refused.

CATCHWORDS : 

Minor civil debt – minor debt – set aside default decision – where decision entered regularly – whether prima facie defence – whether default decision should be set aside

Queensland Civil and Administrative Tribunal Act 2009 ss 50, 51

MVP Investments Australia Pty Ltd v Van Rooy [2010] QCATA 35
National Mutual Life Association of Australasia Pty Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This is an application to set aside a decision by default under s 51 of the QCAT Act.

2. It is alleged that Mr Crocker and Build Restore owes $9,993.50 to Hamilton Roofing for the supply of labour and materials for a project at 55 McDonald Street, Norman Park in or around August 2013.   It is alleged that Mr Crocker signed a credit application in or around June 2012 on behalf of Build Restore and provided a personal guarantee for payment of any amounts incurred by the Company. 

3. A decision by default can be obtained under s 50 of the QCAT Act in a claim to recover a debt or liquidated demand of money, in the absence of any response from the respondent: s 50(1)(c). Under QCAT r 45, a respondent to a minor debt claim who wishes to respond to the application must, within 28 days after receiving a copy of it, file a response in the approved form together with a statement answering the applicant’s assertions and give a copy of that response to the applicant.

4. That is because, towards the middle of the third page of the QCAT application form (form no 3) there is a prominent coloured box containing these words:

   Warning to respondent/s

   You must respond to this application within twenty eight (28) days after you are given a copy of the application. Otherwise, the applicant may apply to the tribunal for a decision by default against you.

5. As His Honour, Wilson J stated in the decision of MVP Investments Australia Pty Ltd v Van Rooy[1]

   it is impossible to avoid the conclusion that the decision is the product of the failure of the Respondent to read what is, on any view, a relatively straightforward, legible and comprehensible form which contained a clear notice to it about what it should do if it wished to dispute the Applicants claim.

   [1][2010] QCATA 35.

6. Mr Crocker alleges that he did not file a response to the application as he believed as he

   had resigned as a Director of the Company Build Restore Pty Ltd on 11 January 2013 and forwarded the application for dispute that I received to the company to respond, I was not aware that I had to respond separately to the company and I was not a party to, nor a guarantee for the Subcontract Agreement entered into between the parties on 29 July 2013 and did not consider that I could be found in any way personally liable for this application/dispute, other than in my capacity as Director up until the date of my resignation.

7. Mr Crocker provided submissions that included an ASIC search[2] to prove that he resigned as a Director of the Company on 11 January 2013. He states that as he was not a Director at the time of supply of labour and goods that he is therefore not liable. He claims that a subcontract agreement[3] between Hamilton Roofing and Build Restore for the project at Norman Park dated 29 July 2013 is the only contact between the parties and that the credit agreement was not relevant.

   [2]Annexure “LAC1” of Submissions of Lee Anthony Crocker.

   [3]Annexure “LAC2” of Submissions of Lee Anthony Crocker.

8. The subcontract agreement was dated 29 July 2013 includes contact details of Mr Crocker and the agreement is in the name of the Company, Build Restore Pty Ltd. From perusal of those documents it appears that although Mr Crocker had resigned as a Director he was still working for the company and the only contact name given for the company.

9. Hamilton Roofing provided submissions in response and alleged that although they agree they entered into a subcontract agreement for the Norman Park project, there was a prior credit application signed by the Director of the company, Mr Crocker, and he gave a personal guarantee for any credit extended to the company.

10. Hamilton Roofing claim that they entered into many sub contract agreements with Build Restore over the years, both while Mr Crocker was a Director and after he resigned, but that ultimately the credit application for the provision of credit for the supply of labour and goods was covered by the credit application signed on 21 June 2012.

11. Hamilton Roofing submit that the credit application signed by Mr Crocker as Director and personal guarantee of the company Build Restore was not terminated and was relied upon by Hamilton Roofing to provide credit to Build restore on an ongoing basis.

12. The Company, Build Restorer and Mr Crocker, were served separately with a copy of the claim. The company being served at its registered business address on 5 November 2013 and Mr Crocker being personally served on 17 November 2013.

13. A default judgement was obtained on 13 January 2014.

14. It would have been obvious to Mr Crocker that there were two Respondents to the claim, him as he was personally named on the claim as well as the company Build Restore. It was prudent upon him to have made the necessary enquiries about the claim and to have filed a response on behalf of himself personally.

15. I am satisfied that the decision by default was regularly entered. A default judgment which has been regularly obtained in the circumstances arising here will only, usually, be set aside if the respondent can advance some good reason for failing to file a defence (in QCAT, a response) and has raised something approaching a good defence on the merits[4]. The respondent cannot meet the first test and has not raised any evidence that would support the merits of a reasonable explanation as to why he did not file a response. Further, any alleged defence he might have does not appear to be support by the limited evidence attached to the submission or the court file.

    [4]National Mutual Life Association of Australasia Pty Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441, at 449.

16. It appears that Mr Crocker has signed a credit application on behalf of the company and has given a personal guarantee for any credit extended to the company. There was no evidence that the credit application had been cancelled and Mr Crocker’s personal guarantee to pay company accounts to be withdrawn or revoked. From the evidence it is also obvious that Mr Crocker had an active involvement in the Company as he appeared at the contact person for the Company in subcontract agreements entered into in August 2013, after he had resigned as a Director. I note that the agreement is also signed by a person, and although difficult to read in full, it appears that the signature is someone with a surname “Crocker”. From the evidence there appears to be no basis that this application under s 51 of the Act has any merit.

What are the appropriate Orders?

1. For the reasons outlined above I am satisfied that the application for setting aside the default decision should be refused

1. The order that I propose to make is as follows:

1.    THAT the application to set aside the Decision by Default filed by the Respondent on 14 February 2014 is refused.