Blair v Harbrew Pty Ltd [2013] QCATA 19

CITATION: Blair v Harbrew Pty Ltd [2013] QCATA 19 PARTIES: Damian Blair Trudianne Sue Blair (Applicants/Appellants) v Harbrew Pty Ltd t/a McAleese Transport (Respondent) APPLICATION NUMBER: APL257-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 30 January 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal dated 20 June 2011 is set aside and the proceeding is remitted to the Tribunal for determination. 4. Harbrew Pty Ltd t/a McAleese Transport has leave to file and serve an amended claim, and any material or submissions in support of the claim, by 4:00 pm on 22 February 2013. 5. Damian Blair and Trudianne Sue Blair shall file and serve a response to the claim, and any material or submissions in support of their response by 4:00 pm on 8 March 2013. 6. Damian Blair and Trudianne Sue Blair shall pay to Harbrew Pty Ltd t/a McAleese Transport costs fixed in the sum of $2,325.00 by 4:00 pm on 30 March 2013. CATCHWORDS: MINOR CIVIL DISPUTE – where no response filed – where decision by default – where application to set aside default decision – -- 1 of 7 -- 2 where no explanation for failure to file a response – where no explanation of the delay in bringing the application – where incorrect respondent named in the claim Queensland Civil and Administrative Tribunal Act 2009, ss 51, 61, 102 Queensland Civil and Administrative Tribunal Rules 2009, r 14 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318, cited Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, applied Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151, applied Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208, cited 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] This case is a vivid example of what can go wrong if a claimant does not identify the correct respondent. Harbrew Pty Ltd t/a McAleese Transport sold and delivered goods to the Commercial Hotel Biloela. It dealt with Mr and Ms Blair. It rendered invoices which were not paid, so it brought a claim against the couple “trading as” Commercial Hotel Biloela. [2] Mr and Ms Blair did not file a response to the claim. On application from McAleese Transport, on 20 June 2011, the Tribunal gave a default decision that Mr and Ms Blair pay McAleese Transport $10,927.95. [3] On 30 April 2012, Mr and Ms Blair filed an application for miscellaneous matters, asking the Tribunal to strike out the claim because the proper respondent should have been Onthehouse Hotels Pty Ltd. The Tribunal interpreted the application as a request to set aside the default decision and made orders for the delivery of submissions and documents by both parties. Mr and Ms Blair filed and served a company search for Onthehouse Hotels Pty Ltd, a letter from ASIC confirming that a key change had been lodged, and an email from Ann Blair, the director of Onthehouse Hotels Pty Ltd confirming that the company, and not Mr and Ms Blair, were responsible for the debt. [4] McAleese Transport filed material showing that it had attempted to enforce the Tribunal‟s decision in the Magistrates Court and that Mr and Ms Blair had not engaged in the process. It noted that Onthehouse Hotels Pty Ltd was under external administration. It also noted that a search of the ABN -- 2 of 7 -- 3 for Commercial Hotel Biloela indicated that a discretionary trust traded under that name. [5] Armed with this material, an Acting Magistrate, sitting as a member of the Tribunal in its minor civil disputes jurisdiction, refused the application to set aside the default decision. [6] Mr and Ms Blair have appealed the learned Acting Magistrate‟s decision. They say that the learned Acting Magistrate fell into error because the weight of the evidence disclosed a plausible defence and that the learned Acting Magistrate misled himself as to the application of a decision of the Appeal Tribunal in The Pot Man Pty Ltd v Reaoch1 („The Pot Man‟). [7] Mr and Ms Blair have also applied for an extension of time in which to file the application for leave to appeal. They filed their application one day late. Extension of time [8] The Tribunal has a general power to extend a time limit fixed by s 61(1)(a) of the QCAT Act. However, the Tribunal cannot extend time if to do so would cause prejudice or detriment that could not be remedied by an order for costs or damages.2 McAleese Transport says that the factors to be considered in an application for an extension of time are set out in the Tribunal‟s decision of Crime and Misconduct Commission v Chapman & Anor3 (‘Chapman‟). Those factors were: a) Whether a satisfactory explanation (or “good reason”) is shown to account for the delay. b) The strength of the case the Applicant wishes to bring (assuming it is possible for some view on this to be formed upon the preliminary material). c) Prejudice to adverse parties. d) Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one. e) Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.4 [9] McAleese Transport says that Mr and Ms Blair have not explained the delay. I do not agree. Mr and Ms Blair say that the delay of one day was caused by the time required to get mail from Adelaide, where they live, to Brisbane. Of course, they should have considered that factor but, on balance, it is not a reason to deny them an extension of time. 1 [2011] QCATA 318. 2 QCAT Act, s 61(3). 3 [2011] QCAT 229. 4 Ibid [9]. -- 3 of 7 -- 4 [10] McAleese Transport makes no submissions about the strengths of Mr and Ms Blair‟s defence in relation to the application to extend time. Its real complaint about the extension is that it has suffered real prejudice and disadvantage. It has set out the history of the enforcement proceedings in support of that submission. It is appropriate to record that history here: a) On 14 July 2011, McAleese Transport registered the default decision in the Magistrates Court at Biloela. On 19 July 2011, its lawyers sent a letter to Mr and Ms Blair demanding payment. It did not receive payment and Mr and Ms Blair did not otherwise respond to the letter. b) McAleese Transport filed an application for an enforcement hearing. Ms Blair accepted service of that application. On 10 October 2011, the Magistrates Court at Biloela ordered Mr and Ms Blair to attend for a public examination on 28 November 2011. c) Mr and Ms Blair failed to attend on 28 November 2011. A warrant was issued for their arrest. They were brought to court on 23 January 2012. They did not provide any financial information. The Magistrate adjourned the hearing to 30 January 2012. d) Only Mr Blair attended on 30 January 2012. He told the Magistrate that they were travelling to Adelaide. He provided a forwarding address. e) On 6 March 2012, McAleese Transport filed a request to issue an investigation summons in the Magistrates Court of South Australia. [11] Mr and Ms Blair do not deny this history. They simply say that this delay is not the relevant delay for an extension of time for the filing of an application for appeal. In that, they are correct but it is of concern that they offer no response to the obvious time and expense to which McAleese Transport has been put. [12] I acknowledge that McAleese Transport has gone to considerable lengths to enforce the default decision. However, I am not satisfied that these efforts constitute such prejudice that I should refuse an extension of time of one day for the filing of the application for appeal. The extension of time is granted. Leave to appeal/appeal [13] Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [14] Rule 14 of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a proceeding can be started against a registered business -- 4 of 7 -- 5 name. As it turns out, Commercial Hotel Biloela is a registered business name. [15] On its own material filed in response to the application to set aside the default decision, McAleese Transport has demonstrated that Mr and Ms Blair were not the proper respondents to the claim. Mr and Ms Blair are not the parties who carry on business under that name and McAleese Transport acknowledged that fact in its response. Therefore, a claim and a decision that names those parties as “trading as” Commercial Hotel Biloela is clearly wrong. [16] Mr and Ms Blair say that, once I have found that they were not the proper respondents, that is enough for me to grant leave to appeal. [17] But it is clear from the Appeal Tribunal‟s decision in Garland and Anor v Butler McDermott Lawyers5 („Garland’) that there were other factors relevant to the exercise of the learned Acting Magistrate‟s decision.6 Relevantly, those factors were: whether or not there is a good reason for the respondent‟s failure to file a response; any delay in bringing the application; the respondent‟s conduct in the proceedings before and after judgment; and, the respondent‟s good faith. [18] Mr and Mrs Blair submit that, the learned Acting Magistrate ought to have, in acting consistently with the Tribunal‟s approach in Garland,7 adopted a more flexible approach in the issue of delay. They suggest that he should have adopted an approach similar to that in Kilpatrick v Tighnabruaich Properties Pty Ltd8 („Kilpatrick’), and set aside the decision by default. [19] The applicant in Kilpatrick had an explanation for the delay: He is a pilot, working a roster of 28 days where he is overseas for 6 days at a time. He also instructed his lawyers to seek clarification of whether the decision was against him personally. Sink and Bathroom Shop confirmed that it was by letter received 5 November 2010. Mr Kilpatrick filed his application within 28 days of that date.9 [20] The affidavit of Ms Cardiff sworn 18 September 2012 may explain why, after Mr and Ms Blair filed the application for miscellaneous matters, they thought they had put sufficient material before the Tribunal. Ms Cardiff‟s affidavit does not explain, and Mr and Ms Blair have never explained, why they did not file a response and why it took them ten months to file an application to set aside the default decision. [21] I understand the frustration of McAleese Transport. Mr and Ms Blair did not file a response. They did not comply properly with the Tribunal‟s order to file material and submission. They led McAleese Transport on a merry dance when it tried to enforce the default decision. 5 [2011] QCATA 151. 6 Ibid [12]. 7 Ibid [13]. 8 [2011] QCATA 208. 9 Ibid [15]. -- 5 of 7 -- 6 [22] However, the admonition in The Pot Man applies to both parties in this proceeding: The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.10 [23] The fact remains that McAleese Transport took no care in ensuring its claim was properly made. All hotels are required to display the licensee at the front of the premises. There is no evidence that McAleese Transport took the precaution of checking this information. It did not do a business names search until May 2012. These simple steps could have avoided the costs it later incurred. McAleese Transport did not act in its own best interests. It must, in part, accept the consequences. [24] Even though Mr and Ms Blair have not explained the delay, I accept that the exercise of the discretion in s 51 of the QCAT Act favoured setting aside the default decision. Mr and Mrs Blair are not the parties who trade under the registered business name of Commercial Hotel Biloela. McAleese took no effort to ensure that it had correctly named the respondent. [25] Section 102 of the QCAT Act allows the Tribunal to order costs if it is in the interests of justice to do so. In considering whether to award costs, the Tribunal may consider whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. [26] Mr and Ms Blair‟s failure to respond to the initial claim, their avoidance of the enforcement proceedings and their lack of proper submissions in the application to set aside the default decision did unnecessarily disadvantage McAleese Transport. Mr and Ms Blair should pay McAleese Transport‟s costs which I have calculated on Scale F of the Magistrates Scale of Fees as follows: Item Description $ 4 Obtaining judgment by default 250.00 12(b) Enforcement hearing 575.00 13(a) Enforcement warrant 250.00 14 Warrant (arrest) 250.00 14 Warrant (South Australian application) 250.00 3 Appearance in court (second enforcement hearing) 250.00 10 Other application (response to application to set aside default decision) 500.00 Total $2,325.00 [27] Mr and Ms Blair say that they were employees of a company that traded as Commercial Hotel Biloela. McAleese Transport says that, at worst, they were the agents of an undisclosed principal and, therefore, are liable for the claim. 10 The Pot Man [2011] QCATA 318 at [10]. -- 6 of 7 -- 7 [28] The entity that trades as Commercial Hotel Biloela is a discretionary trust. The trustee, Onthehouse Hotels Pty Ltd, is in external administration. Before the claim proceeds, McAleese Transport will have to ascertain whether a new trustee has been appointed or whether it has leave to proceed against Onthehouse Hotels Pty Ltd. [29] These are all matters for evidence and a hearing. Leave to appeal should be granted and the appeal allowed. The decision of the learned Acting Magistrate should be set aside and the matter returned to the Tribunal for hearing. Orders [1] Leave to appeal is granted. [2] The appeal is allowed. [3] The decision of the Tribunal dated 20 June 2011 is set aside and the proceeding is remitted to the Tribunal for determination. [4] Harbrew Pty Ltd t/a McAleese Transport has leave to file and serve an amended claim, and any material or submissions in support of the claim, by 4:00 pm on 22 February 2013. [5] Damian Blair and Trudianne Sue Blair shall file and serve a response to the claim, and any material or submissions in support of their response by 4:00 pm on 8 March 2013. [6] Damian Blair and Trudianne Sue Blair shall pay to Harbrew Pty Ltd t/a McAleese Transport costs fixed in the sum of $2,325.00 by 4:00 pm on 30 March 2013. -- 7 of 7 --