Cockrell v Mackey t/as Tablelands Premium Property [2014] QCATA 136

CITATION: Cockrell v Mackey t/as Tablelands Premium Property [2014] QCATA 136 PARTIES: William James Cockrell (Applicant/Appellant) v Laurel Joan Mackey t/as Tablelands Premium Property (Respondent) APPLICATION NUMBER: APL121 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 2 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 4 February 2014 is set aside and the application to set aside a decision by default is allowed. 4. The appellant must file a response to the application in QCAT Claim – Atherton No. MCD0026/13 within three weeks of receiving these reasons for judgment. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – QUESTION OF FACT AND LAW – where decision made by default for respondent – where applicant’s application to set aside decision by default refused – whether grounds for leave to appeal – whether prejudice to respondent – whether Magistrate properly considered if appellant had arguable case – whether Magistrate’s findings led to error of law – whether arguable case – whether decision by default should be set aside Queensland Civil and Administrative Tribunal -- 1 of 4 -- 2 Act 2009 (Qld), s 32, s 142(3)(a)(i), s 147 Pickering v McArthur [2005] QCA 294, applied National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, considered Telco Australia Limited v Favell & Anor [2002] QSC 208, 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 Cockrell signed a Form 22a – appointment of a real estate agent – appointing Ms Mackey to sell a property at Herberton. He signed on his own behalf and under a power of attorney for his wife, as they owned the property as joint tenants. The exclusive agency box on the Form 22a was marked with a cross. [2] During the exclusive agency period, Mr Cockrell sold the property through another agent. Ms Mackey claimed the commission due under the agreement and Mr Cockrell refused to pay. Ms Mackey filed a claim in the minor civil disputes jurisdiction of the tribunal and, when Mr Cockrell failed to file a response, she obtained a decision in default. [3] Mr Cockrell applied to set aside the decision by default. A Magistrate, sitting as a member of the tribunal, refused that application. Grounds of appeal [4] Mr Cockrell has filed an application for leave to appeal. His grounds of appeal, annexed to his application, take issue with a number of the Magistrate’s findings. He says that the Magistrate erred in law and fact. Mr Cockrell submits that the Magistrate’s finding that he entered into an exclusive agency agreement is an error of fact. He says that he has a defence on the merits, which the Magistrate failed to consider when deciding the application to set aside the default decision. He also submits that the Magistrate erred in making findings of fact concerning the nature of documents put before him, and made incorrect findings; that he did not approach the proceeding in good faith. Leave to appeal [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as 1 QCAT Act s 142(3)(a)(i). -- 2 of 4 -- 3 summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that 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 [6] A review of the reasons for decision indicate that the Magistrate has erred when considering whether to allow Mr Cockrell’s application to set aside the default judgment. The appeal tribunal, under s 147 of the QCAT Act, provides that an appeal on a question of mixed law and fact, as appears to be the case here, must be decided by way of rehearing, with or without the hearing of additional evidence as decided by it. Application to set aside default decision [7] In deciding whether to set aside a decision by default, the tribunal should consider Mr Cockrell’s delay in filing a response, the reasons for the delay, and whether there is an arguable defence.3 The latter of those has been suggested to be the more important factor,4 however, risk of prejudice to the other party will also be considered. 5 [8] Mr Cockrell failed to file a response because he tore up the copy of the application when it was served on him. Mr Cockrell’s lawyers submitted to the learned Magistrate that Mr Cockrell would have taken the time to reply to the application if he had known that it was a court document. That is not a credible excuse. However, while the failure to file a response may be a powerful consideration in the learned Magistrate’s reasoning, it cannot be the only factor considered when there is little or no delay in filing the application to set aside the decision by default, and no evidence of prejudice to Ms Mackey. [9] The learned Magistrate was obliged to, and did, consider whether Mr Cockrell had an arguable case. However, the learned Magistrate went further and decided the actual dispute, based on the documents before him. That was not the task he was required to undertake. Mr Cockrell’s primary defence is that he did not agree to an exclusive agency. That raises issues of credit, which should be tested with the assistance of oral evidence. The Magistrate failed to recognise the need for oral evidence. As a result, it was inappropriate to embark, as he did, on considering the substantive merits without the hearing of oral evidence. It is regrettable that Ms Mackey will be put to the inconvenience of a hearing, particularly given Mr Cockrell’s cavalier approach to the dispute, but she has suffered no real prejudice. [10] On that basis, leave to appeal must be granted and the appeal allowed. The decision of 4 February 2014 should be set aside, and Mr Cockrell’s 2 [2005] QCA 294 at [3]. 3 Garland & Anor v Butler McDermott Lawyers [2011] QCATA 151 at [12]. 4 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, per McPherson J at 441. 5 See Telco Australia Limited v Favell & Anor [2002] QSC 208 at [8]. -- 3 of 4 -- 4 application to set aside default judgment, QCAT Claim - Atherton No 26 of 2013 is allowed. Mr Cockrell must file a response to the application filed by Laurel Joan Mackay t/a Tablelands Premium Property within three weeks of receiving these reasons for judgment. -- 4 of 4 --