Uspensky v Faletti

[2017] QCAT 239

CITATION:

Uspensky v Faletti [2017] QCAT 239

PARTIES:

Michael Uspensky t/as National Rental Inspections
(Applicant)

v

Michael Faletti t/as Rentfresh Pty Ltd

(Respondent)

APPLICATION NUMBER:

MCDO62-17

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

19 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   Application by Respondent to set aside default decision is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – set aside/amend default decision – sufficient grounds to set aside/amend – failure to respond – availability of evidence

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd[2010] QCATA 69

APPEARANCES:

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. An application for minor civil dispute – minor debt was filed by Mr Uspensky on 12 January 2017. Service of the application was effected on 1 February 2017.

2. An application for default decision was filed on 5 May 2017. Default decision was entered by the Tribunal on 17 May 2017.

3. Subsequently, an application to set aside the default decision was filed on 30 May 2017. No proper reason was put to the Tribunal to set aside the default decision, rather only a latter day admission of the respondent’s own fault for not responding within the applicable 28-day timeframe i.e. by 28 February 2017.

4. It might well be construed that there was a partial defence on the merits, with the respondent in the statement attached to the application to set aside seeking a 50% reduction in the quantum of the default decision. However, that is overridden by the respondent’s failure to respond altogether. No extenuating circumstances were proffered to the Tribunal.

5. It seems there was a good deal of pre-initiating application communication between the parties attempting to resolve the issues between them. Such were recent. The respondent’s response arguments were clearly available at the time of service of the initiating application on 1 February 2017. There is no suggestion of evidence not being available at the time, such as to raise an argument of non-availability of evidence such as to preclude the filing of a response.

6. The Appeal Tribunal’s decision of Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 (Breezeway) is a decision that can be applied here by analogy. In Breezeway the respondent company’s representatives misread the hearing date on the notice of hearing and turned up at the Courthouse two days late. Wilson J said:[1]

   The incorrect reading of a plainly notified date does not, I think, qualify. QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick…

   [1]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [9].

7. Member Gardiner, the joint decision-maker in Breezeway stated that there was:[2]

   …no dispute that proper notice of the hearing was given to Breezeway, only that a mistake was made by the company’s representatives as to the proper day.

   …

   Breezeway can show no other error than its own.

   [2]Ibid, [18] and [23].

8. That is the case here also. Namely, that the respondent can show no error other than its own.

9. There is no good reason here for the default decision to be revisited.

10. The application to set aside the default decision is therefore refused.