Chassie Pty Ltd v Rothwell [2011] QCAT 364

CITATION: Chassie Pty Ltd v Rothwell [2011] QCAT 364 PARTIES: Chassie Pty Ltd (ATF WTN Family Trust trading as „Sushi on James‟) v Arthur Stephan Rothwell (trading as „Restaurant & Automation Specialists‟) APPLICATION NUMBER: MCDO503-11 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 26 May 2011 HEARD AT: Brisbane DECISION OF: Andrew McLean Williams, Member DELIVERED ON: 11 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The Application for re-opening is dismissed; [2] Application for a stay of the judgement obtained by default on 12 April 2011 is refused. CATCHWORDS: Minor debt – decision in default – Application to reopen on the basis that a Response had been filed, yet in the incorrect form APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 23 February 2011 an Application for Minor Civil Dispute – Minor Civil Debt (Form 3) was filed by Chassie Pty Ltd (t/as “Sushi on James”) seeking $8,604.99 from Mr Arthur Stephen Rothwell (t/as “Restaurant and Automation Specialists”). -- 1 of 3 -- 2 [2] The applicant had previously contracted with the respondent to install a 27-metre sushi belt-conveyor train, at a cost of $26,995.00, together with what has been described as a sushi freshener system, costing a further $12,245.00. [3] It is not in dispute that the sushi conveyor was successfully installed. However, the accompanying sushi freshener system does not operate satisfactorily, or at least that much was alleged by the applicant. By its application, the applicant sought to recover monies that they had paid to the respondent for the defective freshener system. [4] After taking out the application in Form 3, a copy of it was served on the respondent, as is now attested to by an affidavit of service that was sworn by a New South Wales process server, on 10 March 2011. Indeed, there is no dispute from the respondent that he did personally receive a copy of the Form 3. [5] On 12 April 2011 – and by reason that no Form 7 (Response to Minor Civil Dispute – Minor Debt) had been filed by the Respondent within 28 days after the date of service of the Form 3 application on the respondent – the applicant filed a Request for Decision by Default – Minor Civil Dispute – Minor Debt. On 12 April 2011 default judgment was also given to Chassie Pty Ltd in the sum of $8,947.08. In my view that default decision was regularly obtained. [6] Subsequently, on 3 May 2011, the respondent sought to set aside the default decision by way of his bringing an Application to Reopen. In that Application, the respondent submits that a detailed response was sent to QCAT by him by post, on 2 April 2011, yet that he later received a telephone call from a member of the QCAT Registry on 12 April 2011 explaining that the response needed to be filed in the correct Form. The respondent says that the correct Form was then e-mailed to him on 13 April 2011 yet, his originally “filed” documents (needed by him to refile his materials) were not sent back to him by means of ordinary post until 14 April 2011, and that he was not then actually in receipt of these until 19 April 2011. The respondent seeks an opportunity to have the default judgment set aside in order that his response, properly filed on Form 7, might be considered. [7] On 26 May 2011 I refused the respondent‟s application for a reopening. On 14 June 2011 Messrs Warren, McKeon, Dickson Lawyers of Miranda, New South Wales then filed an application for a stay of the default decision granted by this Tribunal on 12 April 2011. At the same time a request was also made for reasons for my decision refusing the application for reopening on 26 May 2011. These now are my written reasons for that refusal. [8] The first page of the Form 3 Application for Minor Civil Dispute – Minor Debt – as was served personally on the respondent contains the following prominent warning: -- 2 of 3 -- 3 WARNING TO RESPONDENTS You must respond to this application by completing and lodging Form 7 – Response to Minor Civil Dispute – Minor Debt within twenty eight (28) days after you are given a copy of the application. Otherwise, the applicant may apply to the Tribunal for a decision by default against you. [9] There is no dispute that the respondent was served with a copy of the Form 3. The warning on the face of the Form 3 to which I have just referred ought then to have been read by him. It served as sufficient warning to the respondent that he ought file his response in the required form and within the specified time limit. Despite this, he did not file any response in Form 7. It is insufficient excuse for the respondent to say that he did not read the Form 3 when it was served on him. [10] The respondent says that he did send a detailed response to the QCAT Registry (in the form of a letter) on 2 April 2011, yet, it is abundantly clear from a reading of the materials contained on the file that the QCAT Registry did not receive the (in all events non-complying) applicant‟s response until as late as 11 April 2011. Even if I were inclined to excuse the respondent‟s failure to use the correct form (which I am not), the non- complying response was not lodged until 11 April 2011. This was much too late, as it was already after the 28 day window within which the respondent had an opportunity to file any response to the applicant‟s Form 3 had closed. As soon as 28 days after service of the Form 3 had expired the applicant was entitled to seek a Decision by Default. The applicant has now done that, and has thereby obtained judgement in a regular manner. No unfairness has been caused to the respondent. [11] Upon the bringing of this Application for Reopening the Respondent has demonstrated no good reason why the Applicant should not be entitled to the fruits of its judgment. The application for reopening filed on 3 May 2011 is refused. [12] I further order that the Application for an Interim Order or Injunction filed on 14 June 2011 seeking an interim stay of the default judgement obtained by the applicant on 12 April in MCD0503-11 should also be refused. -- 3 of 3 --