Brian Choi (Also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust [2020] QCATA 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brian Choi (Also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust [2020] QCATA 87 PARTIES: BRIAN CHOI (ALSO KNOWN AS HYUNG SEOK CHOI) (applicant/appellant) v KWANGSU CHOI AS TRUSTEE FOR THE CHOI FAMILY TRUST (respondent) APPLICATION NO/S: APL349-19 ORIGINATING APPLICATION NO/S: BDL058-18 MATTER TYPE: Appeals DELIVERED ON: 16 June 2020 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member Fitzpatrick ORDERS: 1. An extension of time to file the application for leave to appeal or appeal is granted to the date of filing of the application on 17 December 2019. CATCHWORDS: APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – EXTENSION OF TIME – whether there has been service of proceedings – where judgment entered in default of attendance at a compulsory conference – where matter to proceed as an application for leave to appeal or appeal instead of an application to set aside a default decision. Acts Interpretation Act 1954 (Qld) s39A(1)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 37, 51, 61, 72 Queensland Civil and Administrative Tribunal Rules 2009 Rules 38, 41 Fancourt v Mercantile Credits Limited [1983] HCA 25 Reeve v Hamlyn [2015] QCATA 133 -- 1 of 6 -- 2 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION History of the proceeding On 4 April 2019, a decision was made ordering the appellant Brian Choi to pay the sum of $24,087.68 to Kwangsu Choi as trustee for the Choi Family Trust, the applicant in Matter BDL058-18. The order was made pursuant to s 72 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), in default of Brian Choi’s attendance at a compulsory conference on 4 April 2019. Brian Choi was named as the second respondent in those proceedings. On 1 May 2019, Brian Choi applied to re-open the decision of 4 April 2019. On 8 August 2019 the application was refused, on the basis that no re-opening ground was established. The Member did not accept that Brian Choi had a reasonable excuse for not attending the compulsory conference. The Member stated that she did not accept Brian Choi’s claim that he did not receive an amended application nominating him as the second respondent consequent upon a QCAT Direction of 8 January 2019. Further, the Member did not accept Brian Choi would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen. The Member did not think the evidence relied on by Brian Choi was new as it was reasonably available when the proceeding was first heard and decided. The Member did, however, observe that Brian Choi may have a prima facie defence, sufficient to support an application for judgment to be set aside. The Member referred to Brian Choi’s affidavit denying that he was in effective control of the first respondent in BDL058-18, including operating upon its bank account. On 2 October 2019, Brian Choi applied to set aside the default decision. He again raised the issue of service of the amended application. Brian Choi also alleged that the applicant in BDL058-18 failed to demonstrate that there was a contract between himself and the applicant or that money had passed to him as payment for a service. He says that moneys were paid to the first respondent by the applicant in BDL058-18; however, there was no evidence that he had access to the first respondent’s bank account or that any payment was made to him by the first respondent. By decision dated 3 December 2019, it was ordered that the application to set aside a default decision filed 2 October 2019 proceed as an application for leave to appeal or appeal the decision of the Tribunal made 4 April 2019. Brian Choi was directed to file an application for leave to appeal or appeal in the correct form, pay the appropriate filing fee and file an application to extend time to file the application for leave to appeal or appeal. -- 2 of 6 -- 3 Brian Choi has complied with those directions. Application for extension of time This decision deals with Brian Choi’s application to extend time to file the application for leave to appeal or appeal.1 In considering whether to allow a request for an extension of time to file an application for leave to appeal or appeal, relevant considerations are: (a) the duration of the delay; (b) whether there is a satisfactory explanation for the delay; (c) the merits of the application and its prospects of success; (d) the likelihood of any prejudice to other parties or potential parties; and (e) whether the extension of time is in the interests of justice.2 The parties have filed submissions in relation to the extension of time application in the form of affidavits, to which I have had regard. Duration of the delay Brian Choi has previously taken steps to challenge the default judgment, other than by way of appeal. The time taken in undertaking these steps should be considered in this analysis. Upon legal advice, Brian Choi first tried to re-open the decision. That application was lodged within time. Once he became aware of the possibility that he might make an application to set aside the decision it took him a period of 55 days to do so. There is no time limit prescribed by the QCAT Act for applying to set aside a decision by default under s 51 of the Act. After the 3 December 2019 decision requiring the matter to be dealt with as an appeal, Brian Choi quickly made an application for an extension of time. Given the other reasonably available means of challenging the default judgment, and the fact that proceeding by way of application for leave to appeal or appeal was directed by this Tribunal, I do not consider that there has been unexplained, inordinate delay which would prohibit Brian Choi from making the application for leave to appeal or appeal. Merits of the application Brian Choi maintains the matters set out in his application to set aside the default judgment. In summary, his argument with respect to the original claim against him is that there is no evidence of a contract with him and that there is no evidence he received the original applicant’s money from an intermediate entity. There are many disputed matters of fact, as set out in the affidavit of Isaac Choi filed 24 February 2020. Isaac Choi is a representative of the applicant in the original proceeding and was personally involved in the transaction which gave rise to the dispute. Isaac Choi addresses the evidence which he asserts demonstrates a contract 1 QCAT Act, s 61(1)(a). 2 Reeve v Hamlyn [2015] QCATA 133 at [36]. -- 3 of 6 -- 4 with Brian Choi and that Brian Choi received the benefit of moneys paid by the applicant in the original claim. Some of his evidence is hearsay. In his reply, Brian Choi says that these are matters to be determined at appeal. On the limited evidence before me it is only possible to say that Brian Choi has an arguable defence to the claim in the original proceeding. That is, however, only part of the consideration as to merits of the application for leave to appeal or appeal. An appeal tribunal will be required to determine if any error of fact and/or law affected the decision by the member to enter a default judgment against Brian Choi. The ground of appeal relied upon by Brian Choi is that he was not personally served with the amended application in the original proceeding naming him as a second respondent. Brian Choi asserts that the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) and Practice Direction 8 of 2009 require personal service. He says that the member was in error in entering a default judgment against him in circumstances where he was not personally served and was not aware that an application identifying him as a second respondent had been filed. The background to the service issue is that, by decision of the Tribunal dated 8 January 2019, Brian Choi was joined as second respondent in BDL058-18. It was directed that the applicant file in the Tribunal and serve on Brian Choi a copy of an amended application for commercial building dispute which includes Brian Choi as a respondent, and which sets out details of the claim by the applicant against Brian Choi. It was also directed that Brian Choi file in the tribunal and give to the other parties a copy of his response to the amended application by 28 February 2019. By the time of the compulsory conference on 4 April 2019 there was no response from Brian Choi. Section 37 of the QCAT Act provides that an applicant must, within the period stated in the Rules, give a copy of the application to a party to the proceeding. Rule 38 of the QCAT Rules provides that a document required to be given to an entity may be given to a person in one of the following ways, relevantly: (a) by delivering it personally; (b) by sending it by post to the relevant address (for example the last known address); (c) by leaving it with someone at the relevant address who is apparently an adult and residing or employed there; (d) in another way provided in the service practice direction; (e) in any other way directed by the tribunal. By r 41, if a document is not given in a way provided in the Rules, but the document came into the possession of the person who was to be given the document and the tribunal is satisfied on evidence before it that the document came into the entity’s possession on or before a particular day, the tribunal may, by order, decide that the document came into the person’s possession . The tribunal may, by order, decide that the person is taken to have been given the document. It is not the case, as contended by Brian Choi, that personal service of the amended application was required by the QCAT Act or Rules. Practice Direction No 8 of 2009 -- 4 of 6 -- 5 does not require personal service; it merely describes how personal service may be effected. The 8 January 2019 direction did not require an affidavit of service to be filed. A perusal of the tribunal’s file reveals that on 14 January 2019 at 1.21pm an email was copied to the tribunal by Isaac Choi. The email comprised a letter attaching the tribunal direction of 8 January 2019, a copy of the application including Brian Choi as a respondent detailing the claims of the applicant against him and a copy of the application first filed in the matter. An email address for Brian Choi recorded on the 14 January 2019 email is [email protected] In his affidavit filed 24 February 2020, Isaac Choi affirms that he posted the amended application to Brian Choi by way of registered mail; however, the documents were returned to the local post office as undelivered. I note from other communications by Brian Choi with the tribunal that the email address referred to earlier, is the email address he has used to communicate with the tribunal. The tribunal file also records that the Tribunal sent notification of the compulsory conference in BDL058-18 to Brian Choi to the above email address and that it was also posted to him. The member who made the decision in default of appearance did so pursuant to s 72 of the QCAT Act. That section provides that, if a person does not attend a compulsory conference, the member may make a decision adverse to the absent party and make any appropriate orders. The member must be satisfied the absent party has been given notice of the conference under s 67(2) of the QCAT Act. A record of provision of notice of the compulsory conference was on the tribunal file and available to the member. Without making a finding in the matter, it appears that service of the amended application was effected by sending it and the other material by registered post which is a lawful means of attending to service. Unless delivery to Brian Choi’s address is disproved, the principle is that the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of post.3 I note that, other than reference to a tracking number, no copy of Australia Post’s records of its dealing with the material by way of registered mail is currently before the Tribunal. That evidence will no doubt assist the Tribunal in making a finding in relation to service. I also note, without making a finding, that by virtue of email of the relevant material to Brian Choi, he is likely to have become aware of the amended application. He is also likely to have become aware of the compulsory conference which he was required to attend. On the material before me, I do not consider Brian Choi’s prospects of establishing the current ground of appeal are strong. However, establishing service of the amended application on Brian Choi is fundamental to the jurisdiction of the Tribunal and goes 3 Fancourt v Mercantile Credits Limited [1983] HCA 25 at 97; Acts Interpretation Act 1954 (Qld) s 39A(1)(a). -- 5 of 6 -- 6 to the heart of whether the Tribunal had jurisdiction to give a default decision against Brian Choi in the matter. Prejudice I accept that it is detrimental to a party not to have its claim finalized as quickly as possible. However, the prejudice is not such that it could not be remedied by an appropriate order. The fact is that the Tribunal can only proceed where it has jurisdiction. That must be properly established. Interests of justice It is relevant that Brian Choi made an application for relief by way of an application to set aside the decision by default, pursuant to s51 of the QCAT Act. There is no time limit associated with making such an application. I do not think it is in the interests of justice for an extension of time to file an application for leave to appeal or appeal to be refused in circumstance where the tribunal itself has required the matter to proceed in this way. Conclusion I order that an extension of time to file the application for leave to appeal or appeal be granted to the date of filing of the application on 17 December 2019. -- 6 of 6 --