Buchanan t/as Elite Plant Hire Queensland Pty Ltd v Cham & Anor [2014] QCATA 266

CITATION: Buchanan v Cham & Anor [2014] QCATA 266 PARTIES: Paul Buchanan t/as Elite Plant Hire Queensland Pty Ltd (Applicant/Appellant) v Kraim Cham Georgie Cham (Respondents) APPLICATION NUMBER: APL062-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 29 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 19 August 2013, so far as it relates to Paul Buchanan, should be set aside. 4. The decision of 2 April 2014, so far as it relates to Paul Buchanan, should be set aside. 5. The decision of 2 April 2014 should be amended to refer only to Elite Plant Hire Queensland Pty Ltd as respondent. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where decision by default – whether service effected – whether explanation for delay – whether grounds for leave to appeal PROCEDURE – SERVICE – where service by registered post – whether service by post effective on natural person – where respondent did not collect registered post – whether service effective PROCEDURE – FORMS – where claim -- 1 of 4 -- 2 nominated person trading as company name – whether error affected decision Acts Interpretation Act 1954 (Qld), s 39A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 135(1)(d), s 142 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 38 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87; [1983] HCA 25, applied Pickering v McArthur [2005] QCA 294, applied 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] Mr and Ms Cham operate an earthmoving business. In 2012, they did work for, and rendered invoices to, Elite Plant Hire Queensland Pty Ltd. Elite did not pay the invoices, so the Chams filed a claim in the minor civil disputes jurisdiction of the tribunal. Because of the nature of the Form 3 claim form, they named both Mr Buchanan and Elite as respondents. The tribunal logged that information as “Paul Buchanan t/as Elite Plant Hire Queensland Pty Ltd”. [2] The Chams served Mr Buchanan and Elite by sending the claim by registered post. Neither party collected the post, so it was returned. The Chams applied for, and received, a decision in default of appearance. [3] Mr Buchanan and Elite both applied to set aside the decision in default. A Magistrate, sitting as a member of the tribunal refused the application. [4] Mr Buchanan and Elite want to appeal that decision. They say the learned Magistrate erred in refusing to set aside the default decision. Mr Buchanan says he is wrongly named as a party. He says he was not personally served as required and not served by post. Elite says that it was not served. Both therefore say that the decision by default was irregularly entered and the decision cannot be corrected administratively. [5] 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 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 [6] The Chams’ invoices were issued to Elite. Mr Buchanan might be the person who makes decisions for Elite but he is a different legal entity. There is nothing on the file to suggest that Mr Buchanan has any personal liability for these invoices. [7] Rule 38 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) states that an application for minor debt must be served personally in a way provided by practice direction. Practice Direction 8 of 2009 says that personal service on an individual means personal service. That is, service by post is not personal service. Even if Mr Buchanan was a proper party, he was not properly served. The learned Magistrate was in error in refusing to set aside the decision in default against Mr Buchanan. Leave to appeal should be granted, the appeal allowed and the decision in default set aside. [8] Companies can be served by post to the registered office. The Chams served Elite by sending the claim by registered post to the registered office. [9] Section 39A(1)(a) of the Acts Interpretation Act 1954 (Qld) states that, if an Act permits service by post, service may be effected by properly addressing, prepaying and posting the document. Section 39A(1)(b) states that service is effected at the time when the letter would have been delivered in the ordinary course of post unless the contrary is proved. [10] Elite says that the contrary has been proven, because it did not receive the claim. That point has been the subject of a decision by the High Court in Fancourt v Mercantile Credits Limited:3 Despite remarks ... about non-receipt, it [is] non-delivery that [is] significant ... As the present case shows, delivery may be different from receipt by the intended recipient [but] provided that delivery [to the legally prescribed address] is not disproved, 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. Here there is no evidence of non-delivery. [11] Delivery to the correct address was proven by Mr Buchanan’s own material, exhibiting an email from Australia Post. It was not the Chams’ fault that Elite did not collect its mail. Under the provisions of s 39A, Elite was served. [12] The learned Magistrate refused to set aside the decision in default because he was not satisfied with the explanation of the delay. The decision in default was made on 2 April 2014. The application to set aside the decision was filed on 25 July 2014. [13] The file shows that lawyers on behalf of Mr Buchanan contacted the tribunal on 26 April 2014 asking for copies of documents. The documents were provided by email of 30 April 2014. Mr Buchanan told the learned Magistrate that he was in Vanuatu at the time so he left the matter with his lawyers.4 He blamed the lawyers for a failure to take any action between April and July. Although Mr Buchanan told the learned Magistrate that he 3 [1983] HCA 25 at 97. 4 Transcript page 1-4, lines 33 – 34. -- 3 of 4 -- 4 could produce emails chasing up his lawyers,5 there was none before the learned Magistrate and none has been produced to the appeal tribunal. The learned Magistrate was entitled to find that there was no explanation for the delay. [14] The learned Magistrate considered briefly Elite’s defence that Elite was not liable for the invoices because it was only a conduit between the Chams and another contractor. As the learned Magistrate observed,6 Mr Buchanan’s explanation seems an extraordinary way to do business and is contrary to the documentary evidence before the tribunal. The evidence can support the learned Magistrate’s decision to refuse to set aside the decision by default entered against Elite. [15] Elite says it has a counterclaim against the Chams. There is nothing in the learned Magistrate’s decision, or this decision, that prevents Elite from filing a separate proceeding. [16] It was clear from the material that the Chams were claiming against Elite Plant Hire Queensland Pty Ltd. The decision in default named Elite Plant Hire Queensland Pty Ltd. The reference to Mr Buchanan t/as Elite Plant Hire Queensland Pty Ltd is obviously an error which can be cured under s 135(1)(d) of the QCAT Act. [17] Leave to appeal the refusal to set aside the decision in default against Elite should be refused. As the default decision against Mr Buchanan has been set aside, the order of 2 April 2014 should be amended to delete any reference to Paul Buchanan. 5 Transcript page 1-4, lines 34 – 38. 6 Transcript page 1-14, lines 16 – 22. -- 4 of 4 --