Armour v Body Corporate for Villas on Blue Ridge [2014] QCATA 293

CITATION: Armour v Body Corporate for Villas on Blue Ridge [2014] QCATA 293 PARTIES: Mary Therese Armour Robert William Armour (Applicants/Appellants) v Body Corporate for Villas on Blue Ridge (Respondent) APPLICATION NUMBER: APL245-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 15 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: DEFAULT DECISION – REFUSAL TO SET ASIDE – where applicant’s applied to set aside a decision by default – where tribunal refused to set aside decision – where no defence on the – whether exercise of discretion miscarried. QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 22 August 2013, the respondent filed an application for a minor civil dispute in the Magistrates Court at Coolangatta claiming $3,164.29 from the applicants in respect of outstanding Body Corporate contributions, levies and charges in respect of the applicants’ lot in the Blue Ridge Community Title Scheme 13479. [2] The applicants did not file a response to the application. Therefore, the Body Corporate applied for a decision by default. A decision by default was entered against the applicants on 4 April 2014 in the sum of $3,080.42. [3] Section 50 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) allows an applicant, where no response has been filed to the application, to apply for a default decision if the amount sought to be recovered is a debt or liquidated demand of money. [4] Clearly the respondent’s claim in the minor civil dispute proceeding was for a liquidated claim. Upon the Registrar being satisfied that the originating proceeding had been served on the applicants, and the amount claimed remained unsatisfied, the Registrar can then enter a decision by default. [5] On 9 April 2014, the applicants applied to have the decision by default set aside. The grounds set out in the application are: We have been making weekly payments of $116 and other payments were possible we have no other funds due to down turn in work, we were not aware of this action taking place. [6] The application to set aside the decision by default came before a Tribunal Adjudicator to be determined on the material filed with the application. In a decision of 6 May 2014 accompanied by reasons, the learned Adjudicator refused to set the default decision aside. In her reasons, she considered quite thoroughly the legal principles that apply to the entering of a default decision, and those matters that need to be established if the discretion is to be exercised to set the default decision aside. [7] Those factors are well known and include: a) There is a meritorious defence to the claim made; b) There is a satisfactory explanation for delay. [8] The learned Adjudicator was satisfied on the material that she reviewed in the minor civil dispute file that the originating proceeding had been served on the applicants because, there was an affidavit of service deposing to such matters. [9] With respect to the other matters to be considered in the exercise of discretion she said this: -- 2 of 4 -- 3 There are several factors that are relevant to a consideration on this point, and support my view that there are insufficient grounds to justify the setting aside of a regularly entered decision in default:  Mr and Mrs Armour clearly had the benefit of legal assistance evidenced by lawyers letters in December 2013 to the Body Corporate with offers to resolve the matter of outstanding payments and therefore legal assistance in considering the steps they should have been taken once they were served with the claim and the default decision was made;  Mr and Mrs Armour have not endeavoured to file a substantive defence to the application, other than to offer up an excuse that they have repaid some of the monies;  Mr and Mrs Armour have in fact agreed the monies are owed but they require time to pay and propose a lengthy payment plan;  Mr and Mrs Armour have not provided any explanation for the delay in filing a response. [10] From that decision Mr and Mrs Armour have filed an application for leave to appeal or appeal. Section 142(3)(a) provides that an appeal under this section in respect of a proceeding for a minor civil dispute can only be made if the appellant has obtained the Appeal Tribunal’s leave to appeal. In other words, permission to appeal. [11] Leave to appeal will only be granted in certain circumstances and they include: is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice to the applicant caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?4 [12] The grounds of appeal set out in the application are as follows:  We felt that the water rate distribution among the units is unfair and get the charges share with no reason why we have asked for meter readings Body Corporate refuses to supply.  We would have liked the opportunity to attend the Tribunal in person to share to state our case and defend ourselves charges are not evenly distributed and this is unfair. [13] It is evident from the grounds of appeal, and the submissions filed by the applicants on 7 July 2014 that they are really arguing their defence to the minor civil dispute rather than identifying a miscarriage of the discretion exercised by the learned Adjudicator in refusing to set aside the default decision. The submissions also address factual issues with respect to the calculation of the levies and charges rather than going to establish that the 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 3 of 4 -- 4 decision of the learned Adjudicator is found on an error of law or there is a substantial injustice. [14] I acknowledge that it is difficult for lay persons to fully understand the concept of leave to appeal, but having considered their application, and their submissions in the best light, and then having regard to the reasons of the learned Adjudicator, there is no basis upon which, consistent with the considerations set out above, that leave to appeal should be granted. [15] Therefore, the order of the Appeal Tribunal is leave to appeal is refused. -- 4 of 4 --