Trustee for McMahon Family Trust (t/a Pet Supersavers Rescue v Tahlia Hearsey

[2023] QCATA 69

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Trustee for McMahon Family Trust (t/a Pet Supersavers Rescue v Tahlia Hearsey and Anor [2023] QCATA 69

PARTIES:

TRUSTEE FOR MCMAHON FAMILY TRUST T/A PET SUPERSAVERS RESCUE

(applicant)

v

TAHLIA HEARSEY AND JAKE CONNOR  

(respondents)

APPLICATION NO:

APL239-21

ORIGINATING APPLICATION NO/S:

MCDO1077/20

MATTER TYPE

 Appeals

DELIVERED ON: 

16 May 2023

HEARING DATE:

8 May 2023

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – where sale and purchase of animals – where animals diseased and unfit for purpose – where agreement for sale and purchase included desexing of animals – where desexing term not complied with – where purchaser sues for return of purchase moneys and remedial treatment by third party – where vendor is absent from hearing – where purchaser awarded judgment by default – where vendor as judgment debtor contends that she received no notice of proceeding nor of hearing – where vendor seeks leave to appeal, a setting aside of the primary judgment, and a rehearing

Business Names Registration Act 2011 (Cth) s 18 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 50, s 75
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 36, s 39
The Pot Man Pty Ltd v Reoch [2011] QCATA 318

APPEARANCES & REPRESENTATION

For the applicant: Ms L McMahon
For the respondents: Mr J Connor

INTRODUCTION

1. At material times the applicant trustee (‘McMahon’) conducted a pet sales business in the trade name and style of Pet Supersavers Rescue at Kallangur, Brisbane.

2. In or about April 2020 the present respondents (‘Connor’) purchased two rescue dogs from McMahon.

3. Connor found the health and condition of the dogs was so poor that they were unmerchantable. Further, he complains that in breach of the terms of sale McMahon failed to have the animals desexed in a timely manner. Consequently he was obliged to seek the veterinary services of a third party.

4. On 8 August 2020 the parties were in communication with each other. McMahon emailed Connor to say that desexing was about to commence. However, that did not resolved their differences. On the same day Connor replied:

   As we have mentioned earlier, our dogs were desexed over 4 months ago as you were unable to provide us the service we paid for in a timely manner.

   Clearly the parties had not lost touch with each other one month before the proceedings began, and the customer was seriously dissatisfied. Connor felt bound to remedy McMahon’s alleged default with another service provider, at additional expense.

   The proceedings begin

5. On 7 September 2020 Connor filed the initiating application herein. On the grounds described above he claimed reimbursement and costs totalling $5,268.35.

6. On 21 September 2020 Connor filed an affidavit of service of the writ. Therein he deposed that on 16 September 2020 at 12.49 pm he personally served that document at McMahon’s then known place of business, 1a Nellie’s Lane Kallangur by leaving it there with an apparently adult person who appeared to be an employee of McMahon.

7. McMahon filed no timely response. She did belatedly respond on 3 March 2022, some seven months after the primary decision was made.

8. On 4 November 2020 the QCAT registry notified the parties that a mediation conference[1] would be held by telephone on 2 December 2020 at 2.45 pm. McMahon did not attend that conference, whereupon the matter was listed for hearing on 12 August 2021.

   [1]QCAT Act s 75.

9. Subsequently the service of a written notice of hearing on each party, sent to their respective last known addresses, is verified by an affidavit of Hanna Maharaj, a member of QCAT staff, sworn on 20 July 2021.  A recent search of the file by registry staff confirms that the notice was posted[2] to McMahon’s last known address on the same day, about three weeks before the hearing took place.

   [2]At this stage McMahon had not provided her email address.

10. On 4 August 2021 the registry reminded the parties that a hearing by telephone[3] would take place on 12 August 2021 at 2 pm.

    [3]The covid emergency was current.

11. McMahon did not attend the hearing, and the tribunal proceeded to judgment in her absence.[4] For reasons that need not be detailed here, the Adjudicator disallowed a large part of the claim, entering default judgment for $1,855, including costs.

    [4]QCAT Act s 50.

12. The judgment debt remains unpaid; McMahon contends that she knew nothing of these proceedings until she received a notice of the decision that had already been made. She now seeks leave to apply for a retrial. At this stage it is not a question of revisiting the substantive merits of the dispute, but of deciding a preliminary and vital issue of fact, namely, whether McMahon has had a reasonable opportunity to be heard.

13. The request for a retrial cannot be granted unless Connor’s affidavit of service[5] is rejected. No convincing reason for doing so has been adduced. Apart from formal affidavits by QCAT staff, that document is the only sworn evidence before the tribunal. Connor submits that he attended the Nellie Lane office in person at a precise time, identifying those premises by signage reading ‘Pet Supersavers’ and there handed to a young female attendant a sealed copy of the initial application. McMahon’s unsworn assertions must overcome, if they can, not only the affidavit of service but also the records and researches of impartial registry staff. In view of that evidence, and the parties’ communications just a few weeks before proceedings began[6], it is very difficult to accept that McMahon had no inkling that litigation had begun or was soon to begin. None of the relevant notices posted by QCAT to McMahon was returned by the post office to sender.

    [5]See paragraph 6 above.

    [6]See paragraph 4  above.

14. Bearing steadily in mind that the appropriate standard of proof is the balance of probabilities I am satisfied that it is more probable than not that McMahon was aware of these proceedings well before the trial, and chose, for reasons best known to herself, to ignore them and hope they would somehow go away.  The expense of another trial to contest a claim already much reduced by the tribunal, is not a negligible consideration.

15. I conclude that there is no sufficient basis for setting the primary decision aside; accordingly it must stand. As Mr Justice Wilson, a former president of QCAT observed in The Pot Man Pty Ltd v Reoch[7]:

    The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests. The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences. A failure to attend in the circumstances advanced for the applicant here is not, in those contexts, a ‘reasonable excuse’… 

    [7] [2011] QCATA 318 at [9]-[10].

16. The application for leave to appeal must be dismissed.

    ORDER

    The application for leave to appeal is dismissed.