NRG Piping Pty Ltd v Direct Soda Blasting Solutions Pty Ltd

[2014] QCAT 444

CITATION: NRG Piping Pty Ltd v Direct Soda Blasting Solutions Pty Ltd [2014] QCAT 444

PARTIES:	NRG Piping Pty Ltd (Applicant)
v
Direct Soda Blasting Solutions Pty Ltd (Respondent)

APPLICATION NUMBER: MCDO2046-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 25 August 2014

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 27 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application to set aside the default decision entered 24 July 2014 is refused.

CATCHWORDS: Default decision – relevant considerations for setting aside – failure to file a response – delay – conduct – prima facie defence – prejudice

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

Application

1. On 2 October 2013 the applicant NRG Piping Pty Ltd (‘NRG’) filed a minor debt application seeking $12,962.50 being three unpaid invoices dated 5 June 2012, 16 September 2012 and 16 September 2012 totalling $14,162.50 for the fabrication of soda blasting pipes less the sum of $1,200 which NRG asserted had been paid in reduction leaving a net claim of $12,962.50.

Background and Evidence

1. In determining whether or not a default decision ought to be set aside there are a number of well recognised considerations[1] to be taken into account as follows.

   [1]Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314.

Was there a good reason why Direct Soda Blasting failed to file a response?

1. Direct Soda Blasting’s application to set aside default decision filed 11 August 2014 does not give any reason for the failure to file a response in the period 20 October 2013 (date of service) through 24 July 2014 the date on which the default decision was entered, a period of some nine months. Direct Soda Blasting appears to have had an inordinate length of time within which to consider its position with respect to the filing of a response and never did so.

Delay in bringing the application

1. The default decision was entered 24 July 2014. The application to set aside was filed 11 August 2014. There is no significant delay in bringing the application here.

Direct Soda Blasting’s conduct before and after the entry of the default decision

1. There is nothing in Direct Soda Blasting's application to set aside from which any conclusions about its conduct before the entry of the default decision can be made. In the period October 2013 through July 2014 there appears to be a complete absence of any communication with the applicant NRG. Certainly none has been proffered. Similarly no indication has been given as to conduct after the entry of the default decision.

Is there a prima facie defence on the merits?

1. There are some bland assertions made by Direct Soda Blasting being ‘not manufactured to correct specification, faulty, unsaleable’. These assertions are made well after the event very late in the day and are totally at odds with email material filed by the applicant strongly suggestive of total satisfaction with the product. Email communications in fact indicate an appreciation on the part of Direct Soda Blasting with respect to NRG’s patience when payment for product was not forthcoming under its usual terms.

2. No evidence has been produced to the Tribunal by Direct Soda Blasting supporting any complaints about product from the time the invoices were issued in 2012 until August 2014 when the application to set aside was filed.

3. No detail whatsoever is given or even alluded to as to what was incorrect about the specification of the product, no detail as to what was faulty with the product nor is there any detail as to why the product was unsaleable. In fact no detail of anything whatsoever.

4. It would be reasonable to expect some elementary elaboration of the words ‘not manufactured to correct specification, faulty, unsaleable’ now proffered in support of Direct Soda Blasting’s apparent discontent with the product delivered some two years prior. Otherwise they are words bandied about in the expectation that by simply doing so it is enough to set aside a regularly entered default decision. The paucity of the respondent’s material is analogous to the long since ousted Magistrate Court holding defence ‘not indebted as alleged or at all’.

5. It is not enough to simply use words that suggest there was some dissatisfaction with the product; there must be some element of reasoning even rudimentary which would raise in ones mind enough to be able to say that there is a triable issue. Here there is no clear indication of a triable issue just the use of three or four words now expressing dissatisfaction a long time after the events giving rise to the initiating application.

6. The application to set aside referred to emails and physical visits by Direct Soda Blasting representative with NRG. There are no emails attached to the application to set aside. There are no dates of the physical visits asserted. There is nothing in the nature of even a draft response. In short there is no clear indication of a triable issue forthcoming.

Irreparable prejudice if the default decision were to be set aside

1. It does not appear that irreparable prejudice would be occasioned to NRG if the default decision was set aside. However the Minor Civil Dispute jurisdiction is not a jurisdiction where a party could be adequately compensated by a suitable award for costs in any event.

In finality

1. Taking into account all relevant considerations the Tribunal finds, on balance, that there is not sufficient evidence to warrant the setting aside of the default decision.