Elders Real Estate Redcliffe v Prempac Group Pty Ltd [2017] QCAT 44

CITATION: Elders Real Estate Redcliffe v Prempac Group Pty Ltd [2017] QCAT 44 PARTIES: Elders Real Estate Redcliffe (Applicant) v Prempac Group Pty Ltd (Respondent) APPLICATION NUMBER: Redcliffe Q72/16 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 8 December 2016 HEARD AT: On the Papers DECISION OF: Member Paratz DELIVERED ON: 14 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for an Interim Order filed on 6 December 2016 is dismissed. CATCHWORDS: COURT PRACTICE & PROCEDURE – QUEENSLAND CIVIL PRACTICE – QCAT LEGISLATION - Where judgment by default for a liquidated debt was entered – where an application for an interim order was brought – where the power of the Tribunal to make an interim order was considered Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1), s 47(2), s 50(3), s 50(4), s 58(1) 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] A default decision was given by the Tribunal on 9 November 2016 as follows: The Respondent(s), Prempac Group Pty Ltd, Warwick Jones, Katrina Osborne, pay to the Applicant(s) Elders Real Estate Redcliffe (Owner: Eldersred Property Holding Pty Ltd) t/as ATF Eldersred Corp Superannuation, the sum of $6,059.36 calculated as follows: Claim: $5,843.76 Costs: $ 215.60 Total: $6,059.36 [2] Prempac Group Pty Ltd filed both an ‘Application to set aside or amend a default decision’, and a separate ‘Application for interim order’, in the Tribunal at Redcliffe on 6 December 2016. [3] I made an Order on the papers on 8 December 2016 refusing the application for interim order. [4] An Adjudicator made an Order on the papers on 12 December 2016 refusing the application to set aside the default decision. [5] Katrina Osborne filed a Request for Reasons on 19 December 2016, seeking reasons for the decision made on 8 December 2016. [6] These are my reasons for my decision refusing an interim order. Interim Order Application [7] The application for an interim order describes the order sought as follows: 1) Place a hold on the existing order until such time as our submission has been reviewed and decided. [8] The reasons for seeking the interim order are explained as follows: 1) Because due to severe ill health we were unable to lodge our submission on time. 2) We request the order be reviewed based on our submission, and to produce a more equitable outcome. [9] In effect, Ms Osborne is seeking a stay of the default judgment. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the Act’) does not provide for such a stay. -- 2 of 3 -- 3 [10] The appropriate course for a party against whom a default judgment has been entered, is to bring an application to set aside the default judgment as quickly as possible, which was done. [11] Section 58(1) of the Act provides that: 58 Interim orders (1) Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example – (a) to protect a party’s position for the duration of the proceeding; or (b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding [12] Section 58(1) only gives the Tribunal power to make an interim order before a final decision in a proceeding is made. [13] Section 50 of the Act provides for the Tribunal to make a decision by default for debt or liquidated demand of money. Sections 50(3) and 50(4) provide as follows: 3) If the applicant applies for a decision by default under this section the principal registrar may make the decision. 4) A decision by default given under subsection (3) is taken to be a final decision of the tribunal in the proceeding. [14] The decision of the Tribunal made on 9 November 2016 therefore was a ‘final order’ under section 50(4), and the Tribunal has no power to make an interim order under section 58. [15] Section 47(1)(a) and 47(2)(a) of the Act provide that the Tribunal may order a part of a proceeding to be dismissed if it is misconceived. [16] The application for an interim order is misconceived, as there is no power in the Tribunal to make an interim order in the circumstances, and I order that the application be dismissed. -- 3 of 3 --