MVP Investments Australia Pty Ltd v Van Rooy

[2010] QCATA 35

CITATION: MVP Investments Australia Pty Ltd v Van Rooy [2010] QCATA 35

PARTIES:	MVP Investments Australia Pty Ltd (Applicant)
v
Ronald Van Rooy (Respondent)

APPLICATION NUMBER:            APL106-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   30 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS : 

MINOR CIVIL DISPUTE – LEAVE TO APPEAL – DECISION BY DEFAULT –  LIQUIDATED DEBT – where respondent alleged monies owed under contract of employment – where respondent obtained decision by default – where applicant seeks leave to appeal decision rather than set aside – where applicant does not address usual test for leave – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 51, 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules, r 45

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied
McIver Bulk Liquid Haulage Pty Ltd v Freuhauf Australia Pty Ltd [1989] 2 Qd R 577, applied
National Mutual Life Association of Australasia Pty Ltd v Oasis Developments Pty Ltd (1983) 2 Qd R 441, cited

REASONS FOR DECISION

1. Mr Van Rooy was, it appears, employed under contract as a restaurant consultant–manager by MVP Investments Australia Pty Ltd in a restaurant it operates in Brisbane. He terminated that employment in January 2010 but claimed, in proceedings brought in QCAT’s minor civil disputes jurisdiction, that MVP still owed him $6,000.

1. His QCAT application was, as submissions from one of MVP’s directors in these proceedings confirm, served upon the company, but it failed to respond to the application and, on proof of service and that the debt was still unpaid, Mr Van Rooy obtained a decision by default from QCAT on 31 May 2010 for the claim of $6,000 and $90 costs.

1. MVP has sought leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 142(3)(a)(i). MVP should have sought to set aside the decision by default under s 51 of the QCAT Act, but has not applied to do so.

1. In its application for leave, and submissions in support of it, MVP accepts (through one of its directors) that it initially received a letter from solicitors acting for Mr Van Rooy and, later, the QCAT application for determination of the minor civil dispute and a covering letter.  MVP’s director, Mr Amin, says in his submissions that he then waited to receive notice about “…when the court case was so that we could go down to the tribunal and defend ourselves in good faith”. The next information he in fact received was advice of the default decision in Mr Van Rooy’s favour.

1. 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.

1. Even a respondent who fails to look at the QCAT Act or Rules or make appropriate inquiries or take appropriate advice about the requirements of the legislation is unable to reasonably assert, however, that it has not been properly alerted to the need to respond if the claim or part of it is disputed.

1. 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.

1. MVP’s submissions in support of its application for leave to appeal do not, otherwise, address the usual tests applying to an application of that kind – whether or not there is a prima facie case of error in the original decision, and whether there is a question of importance upon which further argument and a decision of the appeal tribunal would be of public advantage.[1]

   [1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Freuhauf Australia Pty Ltd [1989] 2 Qd R 577.

1. Accepting that MVP appears to be unrepresented and without legal assistance it is, in any event, plain that it could not show any error in the primary decision. On its face Mr Van Rooy’s material was sufficient for him to obtain a decision by default. It is impossible for MVP to avoid the conclusion that the decision is the product of the failure of its own officers 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 Mr Van Rooy’s claim.

1. MVP’s application for leave to appeal should be refused.

1. There is one other aspect of matter to be considered. As observed earlier, MVP might, rather than seek leave to appeal, have applied to set aside the decision by default under s 51. This Tribunal is obliged to conduct its proceedings in a way which is fair, and reflects the substantial merits of the case, and with as little formality in technicality as possible (QCAT Act, s 28) and it is appropriate to consider whether that relief could be available to MVP.

1. For reasons already considered, 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[2]. MVP cannot meet the first test and, surprisingly, has said nothing about the nature or merits of any defence it might have in its application for leave. There is no basis for suspecting an application under s 51 would have merit.

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