Apples Contracting Pty Ltd v Lab45 Pty Ltd [2016] QCAT 247

CITATION: Apples Contracting Pty Ltd v Lab45 Pty Ltd [2016] QCAT 247 PARTIES: Apples Contracting Pty Ltd ACN 128 195 988 (Applicant) v Lab45 Pty Limited ACN 136 902 102 (Respondent) APPLICATION NUMBER: MCDO0207-16 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 20 June 2016 HEARD AT: Southport DECISION OF: Adjudicator Mewing DELIVERED ON: 20 June 2016 DELIVERED AT: Southport ORDERS MADE: 1. Application for representation filed by the Respondent on 23 May 2016 is refused. 2. The Respondent’s application to set aside the default decision of 20 April 2016 is refused. CATCHWORDS: MINOR CIVIL DISPUTE – application for representation – application to set aside default decision – whether default decision irregularly entered – whether service on a corporation properly effected Queensland Civil and Administrative Tribunal Act 2009 ss 11, 28, 43, 50, 51 Queensland Civil and Administrative Tribunal Rules r 38 Addo v Cairns and District Regional Housing Corporation [2012] QCATA 105 Booij & Multiply Plus Pty Ltd v Roper [2015] QCATA 157 Cachia v Grech [2009] NSWCA 232 Kioa v West (1985) 159 CLR 550 -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): 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 Background [1] Apples Contracting filed an Application for Minor Civil Dispute on 15 March 2016, seeking payment of $13,846.86 allegedly owed to it by Lab45, plus interest and costs totalling a further $634.44. [2] On 20 April 2016 Apples Contracting filed a Request for Decision by Default seeking a Tribunal order under s 50 of the Queensland Civil and Administrative Tribunal Act for Lab45 to pay the claimed amount plus interest and costs because it had failed to file a response to the originating application within 28 days. A default decision in favour of Apples Contracting was made the same day. [3] Lab45 has since filed two applications: (1) an application to set aside the default decision of 20 April 2016; and (2) an application for leave to be represented by its solicitors. These applications are the subject of this hearing. Application to Set Aside a Default Decision [4] Section 51 of the Queensland Civil and Administrative Tribunal Act 2009 allows the Tribunal, on application by a respondent, to set aside a decision by default on terms the Tribunal considers appropriate. [5] Lab45 says the default decision was entered irregularly because it was not provided with a copy of the originating application. It also says it has a “prima facie defence” to Apples Contracting’s claim. For these reasons it says the default decision should be set aside pursuant to s 51 QCAT Act. a) Service [6] Rule 38 of the QCAT Rules provides that a copy of an application for a minor debt claim must be served on an entity as provided by a practice direction. QCAT Practice Direction 8 of 2009 states that personal service on a corporation is effected by leaving it at or posting it to the registered office of the entity. [7] The originating application was posted to an address which, as shown on an ASIC search submitted by Lab45, was the Respondent’s registered office from 13 May 2015 until at least 17 May 2016. Apples Contracting served Lab45 at that address in March 2016. This complies with Rule 38 and the relevant practice direction. The evidence suggests that the application was properly served. -- 2 of 5 -- 3 [8] To support its submission about non-receipt of the initial application, the director of Lab45, Mr Jason Grant, swore an affidavit stating that he did not receive the application until after 21 April 2016 when he visited Lab45’s former business premises to find it there. Mr Grant says all mail to his registered office had been forwarded to his bookkeeper since February 2015, but after terminating the arrangement with the bookkeeper in February 2016, the bookkeeper forwarded mail intermittently in batches to its business premises. Mr Grant says that Lab45 vacated those premises in March 2016 and he arranged redirection of mail to its new premises on 3 May 2016. Because of this, Mr Grant says he did not receive a copy of Apples Contracting’s QCAT claim until 21 April 2016. [9] Mr Grant’s reliance on the fact he didn’t receive the application before 20 April to argue that service was ineffective is misguided. I accept that he did not personally receive notice of the application against Lab45 before the default decision was made, but this does not make its service irregular or ineffective. Service is effected by posting it to a company’s registered office, which Apples Contracting did. [10] The public is entitled to assume that the published registered address of an Australian company on ASIC databases is correct, and that notices issued to that company at that address will be received. It is common for the company’s accountant or other adviser to act as agent for the company by allowing the agent’s office address to be the registered address for the company. Where that is the case and the agent has omitted to pass on an important letter, it may have a claim against its agent, but the company is not relieved of any liability, detriment or obligation to a third party. [11] The Tribunal is bound to afford parties natural justice in the conduct of its proceedings.1 Natural justice is a flexible concept, the requirements of which must be adjusted to the statutory framework governing the Tribunal in question.2 Perhaps the most inflexible aspect of natural justice is that a party must have the opportunity to present its case—but a party cannot rely on inability to present its case caused by its own error,3 or an error or omission of its bookkeeper, employees or other assistants. [12] I find that the originating application was validly served in accordance with the Service and Execution of Process Act and QCAT Practice Direction 8 of 2009. Even if the application was not passed on to its director timely despite valid service, that is not an excuse providing grounds to set aside the default decision. b) Prima Facie Defence [13] Lab45 says in its application that the default decision should also be set aside because it has a “prima facie response to the applicant’s claim.” Indeed, it has (together with the application which is the subject of this 1 Section 28 QCAT Act. 2 Kioa v West (1985) 159 CLR 550; Booij & Multiply Plus Pty Ltd v Roper [2015] QCATA 157. 3 Booij, Ibid. -- 3 of 5 -- 4 hearing) submitted the Response to Minor Civil Dispute form that it presumably would have filed had it received Apple Contracting’s originating application in time. (Incidentally, the response has not been filed by the Registry and is not considered as part of this application.) [14] In the affidavit of Mr Grant, he says Apples Contracting failed to carry out the works for which it is claiming money to a “proper workmanlike standard”. It further submits that Apples Contracting “failed to comply with the requirements of the Kembla KemPress Installation Guide.” [15] Whether or not a respondent has a reasonable chance of success in defending a claim is one of several established principles to be observed in considering an appeal application.4 It is not a consideration under s 51 QCAT Act, but that section appears to be deliberately broad enough to take all considerations into account. [16] If there had been some doubt about proper service of the originating application there may be scope to take other factors into account, such as the reasonable prospects of success argument now made by Lab45. There is, however, no doubt about service. There is no reason to consider Lab45’s possible prospects of success when its failure to properly manage its business affairs was the cause of the situation it now finds itself. [17] The application to set aside the default decision is refused. Application for Representation [18] Given the order to refuse the application to set aside the default decision, the Tribunal is functus officio and Lab45’s application for representation is redundant. Nevertheless, even if the default decision had been set aside and the matter relisted, the application would have been refused for the reasons that follow. [19] Lab45’s submissions correctly acknowledge that s 43 of the QCAT Act states that its main purpose is to have parties represent themselves unless the interests of justice require otherwise. This general rule may be displaced by order of the Tribunal in specific circumstances, including where proceedings are likely to involve complex questions of fact or law,5 or where another party in the proceeding is represented.6 [20] In its application Lab45 submits that it should be given leave to be represented because (1) the proceedings involve complex issues of fact or law, (2) the other party is represented and (3) it is a corporation. [21] With regard to complexity, Lab45 says it is entitled to a set-off of $171,504.00. As correctly submitted by Lab45, that claim would take it out 4 Cachia v Grech [2009] NSWCA 232 at 2, followed by Judge Fleur Kingham, Deputy President, in Addo v Cairns and District Regional Housing Corporation [2012] QCATA 105. 5 Section 43(3)(b) QCAT Act. 6 Section 43(3)(c) QCAT Act. -- 4 of 5 -- 5 of QCAT’s jurisdiction7 and require transfer to the District Court. Determination of that fact requires a simple arithmetic observation and does not render the proceedings so complex that a presiding Member or Adjudicator would be aided by the assistance of legal representatives. [22] Lab45’s contention that Apples Contracting is legally represented before QCAT is incorrect. While the file shows that its lawyers have exchanged correspondence with Lab45, no order of the Tribunal has been made granting leave to Apples Contracting to be legally represented. A party is free to engage the services of a solicitor as much as it likes prior to and during QCAT proceedings, but is precluded from having a lawyer or other person represent them at proceedings (ie, hearings, compulsory conferences, and mediation) without leave. [23] Lab45 also says it should be legally represented because it is a corporation and its director resides in Sydney, whereas its proposed legal representatives are based in Brisbane. It says it is in the interests of justice for lawyers to represent Lab45 because its director would otherwise have to travel from Sydney which would be costly and inefficient. It says its lawyers have carriage of a District Court matter against Apple Contracting so are best placed to defend Apple Contracting’s QCAT application. [24] Rule 54(2) of the QCAT Rules requires leave of the Tribunal before a corporation can be legally represented. When considering whether to grant leave, the Tribunal must have regard to s 43(3) QCAT Act. As previously discussed, none of those considerations apply in this case. The fact that Mr Grant lives in Sydney could be overcome by him applying to appear via remote conferencing, which would likely have been granted had the matter proceeded to hearing. [25] The application for leave to be represented is refused. 7 Claims up to $25,000.00: Section 11 and Schedule 3 (definition of ‘minor civil dispute’) QCAT Act. -- 5 of 5 --