Muller v Brodnick

[2014] QCATA 334

CITATION: Muller v Brodnick [2014] QCATA 334

PARTIES:	Jeffrey Muller (Applicant/Appellant)
v
Patrick Brodnick (Respondent)

APPLICATION NUMBER: APL403-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 1 December 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where claim for return of investment – where decision in default – where application to set aside decision – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Morales v Murray Lyons Solicitors (a firm)[2010] QCATA 87

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Brodnick filed a claim against Mr Muller, claiming the return of $5,000 he invested in an American company recommended to him by Mr Muller. He claimed the investment had no value, which Mr Muller knew.

2. Mr Brodnick had trouble serving Mr Muller. He twice applied to extend the time for service. He also twice applied for an order for substituted service. Eventually, Mr Muller was served in accordance with the second order for substituted service.

3. Mr Muller did not file a response. Mr Brodnick applied for, and received, a decision in default of a response. He filed a detailed affidavit of service to support his application.

4. Mr Muller applied to set aside the default decision. His application was refused. Mr Muller wants to appeal the refusal to set aside the default decision.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

6. Mr Muller is seeking leave to appeal the exercise of the tribunal’s discretion. The appeal tribunal will not interfere with the exercise of a discretion unless it can be shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[3]. Just because the Appeal Tribunal might have exercised the discretion differently, is not a basis for changing the decision. Mr Muller must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[4].

   [3]House v The King (1936) 55 CLR 499, at 504.

   [4]Lovell v Lovell (1950) 81 CLR 513.

7. In deciding an application to set aside a default decision, the tribunal must consider[5]:

   a)    Whether there is a good reason why Mr Muller failed to file a response; 

   b)    Whether there has been any delay by Mr Muller in bringing the application;

   c)    His conduct in the action before and after judgment;

   d)    Whether he demonstrated good faith;

   e)    Whether he has raised a prima facie defence on the merits (raising triable issues); and

   f)     Whether Mr Brodnick would be irreparably prejudiced if the decision is set asidewhich cannot be adequately compensated by a suitable award of costs.

   [5]Morales v Murray Lyons Solicitors (a firm)[2010] QCATA 87 adopting Uniform Civil Procedure Rule 2009 r 290.

8. Mr Muller says that he did not file a response because Mr Brodnick served the claim on the wrong address. That is true but, as soon as he was aware of the error, Mr Brodnick applied for substituted service on the correct address and, as the file shows, served Mr Muller at the correct address.  Mr Muller does not have a good excuse for failing to file a response.

9. Mr Muller did not delay in filing the application to set aside the default decision.

10. The affidavits in support of the applications for extensions of time, substituted service and the default decision, indicate a habit of avoidance by Mr Muller. They do not reflect well on his conduct before the decision and they do not reflect conduct in good faith.

11. There is a triable issue, in that Mr Muller denies Mr Brodnick’s claim. However, Mr Muller does not deny that Mr Brodnick invested $5,000 in an American company. He does not deny that the company now has no value. The relationship between the parties has deteriorated to the extent that there are allegations and cross-allegations of unlawful behaviour. It seems likely that the tribunal is not the appropriate forum to resolve all disputes between the parties.

12. The tribunal’s ability to order costs in minor civil dispute applications is limited. It can order the payment of interest and that might be sufficient to compensate Mr Brodnick for any delay.

13. On balance, however, I am not persuaded that the learned Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters. Therefore, it would be wrong for me to substitute another decision when there is no evidence that the exercise of the learned Adjudicator’s was in error.

1. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.