Ellacott v Dugas [2015] QCATA 180

CITATION: Ellacott v Dugas [2015] QCATA 180 PARTIES: Mark Ellacott (Applicant/Appellant) v Joseph Dugas (Respondent) APPLICATION NUMBER: APL137 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 14 December 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where settlement agreement with repayment schedule – where agreement provided that applicant could enter judgment if default on repayment agreement – where default – where judgment entered - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 85(5) Pickering v McArthur [2005] QCA 294 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 [1] Joseph Dugas loaned money to Mark Ellacott. When Mr Ellacott did not repay the loan, Mr Dugas filed a minor debt claim. -- 1 of 3 -- 2 [2] The parties resolved their differences at mediation in July 2012. Mr Ellacott agreed to pay Mr Dugas $8,500 by monthly instalments of $150. The agreement provided that, if one of the parties defaulted on the agreement, the other could apply to the tribunal for an order giving effect to the agreement. [3] Mr Ellacott defaulted on the agreement. He did not pay the monthly instalments due in December 2014 and January 2015. Mr Dugas applied for an order giving effect to the agreement. On 9 March 2015, the tribunal ordered Mr Ellacott pay Mr Dugas $4,500 within 14 days. [4] Mr Ellacott wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a ‘reasonable argument’ that the decision is attended by error, and an appeal is necessary to correct a ‘substantial injustice’ to the applicant caused by that error.2 [5] Mr Ellacott says that he was not aware of Mr Dugas’ request for judgment and he did not receive any material in relation to that request. He says that he has honoured his obligations under the agreement. He says that Mr Dugas has accepted a payment he made in February 2015. [6] The tribunal may make orders giving effect to a settlement obtained at mediation3. The parties acknowledged and agreed to the exercise of that power in their agreement. The only question for the appeals tribunal is whether that power was exercised correctly. [7] I do not accept Mr Ellacott’s submission that he knew nothing of the request for judgment. The file shows that the tribunal sent him a copy of the application under cover of a letter dated 13 February 2015, inviting him to file submissions by 6 March 2015. The letter was sent to the same address that Mr Ellacott noted on the application for leave to appeal. While the letter wrongly refers to an application to set aside a default decision, it did enclose a copy of Mr Dugas’ application. I am satisfied that Mr Ellacott had notice of the application and that he received the material in support of the application. [8] I do not accept that Mr Ellacott has honoured the terms of the agreement. By his own admission, he missed two payments. Mr Dugas filed his application shortly after Mr Ellacott missed the second payment. [9] The fact that Mr Dugas accepted a payment from Mr Ellacott after he filed the application does not mean that he was not entitled to a decision from the tribunal. Mr Ellacott could have informed the tribunal of the resumption of payments, but he did not. The tribunal was not in error in making its decision. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 QCAT Act, s 85(5). -- 2 of 3 -- 3 [10] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. -- 3 of 3 --