Barton v Heaver [2011] QCATA 194

CITATION: Barton v Heaver [2011] QCATA 194 PARTIES: Mr Brian Barton v Ms Lynette Fay Heaver APPLICATION NUMBER: APL134 -11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 15 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Decision of 1 October 2010 set aside and the following decision substituted: Application dismissed. CATCHWORDS : DEFAULT DECISION – where former employee of company in liquidation brought proceedings against company and former directors – where no response filed – where decision in default – whether tribunal should have issued decision in default Corporations Act 2001 (Cth) ss 471B, 596AF, 596AH, 601AD, 601AH APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] On 29 July 2010, Ms Heaver filed an application against Lawstone Pty Ltd and Brian and Philomena Barton for unpaid wages. The application was served by posting it to the company’s registered office. On 1 October 2010, the tribunal issued a decision in default of a response, ordering that Lawstone, Brian and Philomena Barton were each liable to Ms Heaver for $18,380.73. [3] Mr and Mrs Barton have appealed the tribunal’s decision on the grounds that: a) The company went into liquidation in November 2007. b) Ms Heaver’s claim for unpaid wages was determined by the liquidator. [4] 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? [5] These facts were clear on the face of Ms Heaver’s application and should have put the decision-maker on notice that this was not an ordinary claim for a debt due: a) Lawstone was in liquidation. b) The liquidator’s report acknowledged Ms Heaver as a creditor of the company. The liquidator also reported that a dividend was unlikely. c) Ms Heaver received a payment of $1,440 from GEERS (General Employee Entitlement Redundancy Scheme). [6] Given that the application was posted to the company’s registered office, there is real doubt that service was valid, especially as against Mr and Mrs Barton. [7] Pursuant to s471B of the Corporations Act 2001 (Cth), while a company is being wound up, a person cannot proceed with an action against the -- 2 of 3 -- 3 company without the leave of the Court. The meaning of “Court”, obviously, does not include this tribunal. There is no evidence that Ms Heaver has the leave of a relevant Court to bring these proceedings. [8] The company was deregistered in 2007. Pursuant to s601AD of the Corporations Act, a company ceases to exist on deregistration. If a person wants to take action against a deregistered company, that party must apply for its reinstatement.1 Ms Heaver has not applied for the company’s reinstatement. [9] Ms Heaver can apply for compensation from Mr and Mrs Barton with the liquidator’s consent2, but there is no evidence that she has sought that consent. Ms Heaver can also apply for compensation from Mr and Mrs Barton without the liquidator’s consent3 if she has: a) Given notice to the liquidator of an intention to bring proceedings. b) At the end of 3 months after the notice is given, the liquidator has not consented to Ms Heaver beginning those proceedings; and c) The Court has given leave for the proceedings. [10] There is no evidence that Ms Heaver has undertaken any of these steps. [11] The default decision against the company and Mr and Mrs Barton was entered irregularly. Ms Heaver does not have the leave of any Court to bring these proceedings. Leave to appeal should be granted, the decision set aside and Ms Heaver’s application should be dismissed. 1 Corporations Act 2001, s601AH. 2 Corporations Act 2001, s596AF. 3 Corporations Act 2001, s596AH. -- 3 of 3 --