Vella v Brooks

[2012] QCATA 245

CITATION: Vella v Brooks [2012] QCATA 245

PARTIES:	Michael Vella t/as MCV Enviroworks Pty Ltd (Applicant/Appellant)
v
David Brooks trading as David Brooks Landscapes Pty Ltd (Respondent)

APPLICATION NUMBER: APL406-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 27 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Decision by Default – where the applicant has appealed a decision to set aside a decision by default – whether discretion miscarried

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 10 December 2010, the applicant commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming monies owed for the supply and installation of organic soil and Cyprus mulch to the All Saints School at Merrimac.  The respondent did not file a response in time and the applicant applied for a decision by default which was granted.

1. Subsequent to that decision being made the respondent applied to have the decision by default set aside.  In support of that application the respondent filed an affidavit setting out the reasons why a response was not filed and also why he says he has a defence to the proceeding.  His affidavit was supported by an affidavit by Warren Austin, a solicitor, who sets out certain advice given to Mr Dwinell of the respondent and also explains the delay in not filing a response.

1. The application was considered by a QCAT Member on 14 September 2011 and a decision was made to set aside the default decision.

1. On 13 October 2011 the applicant filed an application for leave to appeal or appeal the decision to set aside the default decision and supported the application with a written submission which really goes to the merits of the claim made against the respondent.  It also challenges the matters set out in the affidavits in support of the application to set aside the default decision.

1. A decision by default will be set aside if the applicant can satisfy the Tribunal that there is a reasonable explanation for the delay and there is a defence on the merits.  On perusing the material, it is evident that the Tribunal Member was satisfied that in the interests of justice the decision by default should be set aside and the matter should proceed to hearing.  That has since occurred and the Tribunal made a decision in respect of the substantive matter on 22 August 2012. 

1. Because the setting aside of a default decision is an exercise of discretion and because no error is apparent in the exercise of that discretion leave to appeal should be refused.