Revamp Plus Pty Ltd v Superior Marble and Granite Pty Ltd

[2011] QCATA 134

CITATION: Revamp Plus Pty Ltd v Superior Marble and Granite Pty Ltd [2011] QCATA 134

PARTIES:	Revamp Plus Pty Ltd
v
Superior Marble and Granite Pty Ltd

APPLICATION NUMBER:             APL199-10              

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Andrew McLean Williams, Member

DELIVERED ON:      7 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

MINOR DEBT – LEAVE TO APPEAL – where applicant did not file response to the original application – where respondent granted decision by default – where applicant sought leave to appeal rather than applying to set aside the default decision – where applicant did not advance the usual arguments for seeking leave to appeal – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 43, 51, 142(3)
Queensland Civil and Administrative Tribunal Rules 2009, r 44(2)(a)(ii)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

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

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Senior Member Richard Oliver:

1. In this matter the Appeal Tribunal consisted of Mr McLean Williams, QCAT Member and me.  I have had the benefit of reading his reason in draft.  I agree with his reasons, and his conclusions and the order he purposes.   

Member Andrew McLean Williams:

1. On 1 September 2010 Superior Marble and Granite Pty Ltd, obtained an decision by default from a QCAT adjudicator at Southport, who ordered that Revamp Plus Pty Ltd (who trade as ‘Cascade Bathrooms, Kitchens and Tiles’) pay the respondent the sum of $2,973.73.

1. The decision by default was (as is required) also supported by a “proof of debt” affidavit sworn by a director of Superior Marble on the same date that the default judgement was obtained, swearing as to the existence of the debt.  The judgement was regular, and properly founded.

1. On 9 September 2010, Superior Marble filed an Application for Leave to Appeal or Appeal, specifying as grounds for the appeal that:

“I did not realise that there was a need for Revamp Plus P/L to respond to the claim prior to going to mediation….”.

1. Pursuant to s 142 (3) of the QCAT Act, leave of this appeal tribunal is necessary. The question whether (or not) leave should be granted is usually one to be addressed in accordance with established principles: Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary in order to correct a substantial injustice to the applicant caused by some error?[3]  Is there some question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to general public advantage?[4] 

   [1]           QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. In the instant case Revamp is simply unable to point to any error in the decision now appealed against.  The only error in this case has been the appellant’s own failure to carefully read the application that was served upon them under cover of a letter dated 27 July 2010. 

1. Applications for a Minor Civil Dispute (of which this is one) are filed on QCAT Form 3.  Form 3 contains the following prominent and salutary warning to respondents:

“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. The respondent is entitled to the fruits of their regularly obtained judgement.  That Revamp made an error in failing to properly read Form 3 when it was served on them does not now afford any sufficient basis upon which to obtain leave to appeal.

Conclusions & Order

1. As Revamp has been unable to demonstrate any error on the part of the learned adjudicator (and nor is any other error apparent on the face of the record), leave to appeal must be refused.