Weranga Property and Livestock Enterprises Pty Ltd t/as Ray White Rural Tara v Metis Rex Pty Ltd t/as Metis Machinery [2025] QCATA 92

• [5] By the Appeal Application, the Grounds of Appeal stated as follows:

Initially apologies for not replying within 28 days of the initial QCAT Minor Civil Dispute. I did not read in full the instructions advising of the need to reply within 28 days.

The grounds of appeal are that Weranga Property and Livestock Enterprises Pty Ltd is only a rebate agent and is not the business owner of the auction platform in which the item is sold that we have been instructed to refund. The collection and distribution of monies is not conducted by our business. The terms & conditions and platform the auction is conducted is owned by Nasco Ag & Industrial and not ours, and while we attempted numerous times to aid in the negotiations for the matter, are not the responsible business that is able to refund or not.

Additionally, when Metis Machinery went to collect the item is [sic] was operational and not as stated in the Minor Civil Dispute application 'not operational'.

• [6] An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal's leave to appeal.[1]
• [7] As to the Tribunal's approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:[2]

... As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

• [8] Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[3]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal ... In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

• [9] A decision by default is taken to be a final decision of the Tribunal in the proceeding.[4]
• [10] A decision by default is not one of the decisions which a party to a Tribunal proceeding cannot appeal to the Appeal Tribunal.[5]
• [11] In my view, the default decision is a decision in respect of which leave to appeal (and an appeal if leave is granted) may be made to the Appeal Tribunal.
• [12] However, for the reasons set out below, the grounds upon which Weranga Property can seek to set aside the default decision are limited in scope, and, in my view, the merits of any defence available to Weranga Property are not relevant to the Appeal Application.

• [13] Section 51 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') provides:

The tribunal, on application by the respondent, may set aside or amend a decision by default on terms, including terms about costs and the giving of security, the tribunal considers appropriate.

• [14] The principles to be applied in an application under s 51 were addressed in NDISP Pty Ltd v Bowieberghs Pty Ltd.[6] The relevant factors under s 51 include whether Weranga Property had a prima facie defence on the merits.
• [15] Weranga Property's submissions on the Appeal Application raise matters that would ordinarily be addressed in relation to an application to set aside a decision by default under s 51.
• [16] However, Weranga Property did not bring an application under s 51 but chose to seek leave to appeal the default decision under Chapter 2, Part 8, Division 1 of the QCAT Act. In my view, the consequence of this is that Weranga Property may succeed on the Appeal Application only if the Appeal Tribunal concludes that entry of the default decision was attended by error, specifically whether the requirements for the making of the default decision were satisfied. In my view, this does not entail any consideration of the merits of Weranga Property's defence. It does raise the question of whether the default decision was regularly entered.
• [17] In the present case, the question is whether the requirements for the default decision were satisfied.

The requirements for entering the default decision

(1) This section applies if -

(a) a person has applied to the tribunal to recover a debt or liquidated demand of money from a person (the respondent); and

(b) an enabling Act that is an Act or the rules state that the respondent must respond to the application within a stated period; and

(c) the respondent has not responded to the application within the stated period.

(2) The applicant may, in the way stated in the rules, apply to the tribunal for a decision by default for an amount limited to -

(a) the amount claimed in the application starting the proceeding; and

(b) interest on the amount claimed at the rate the tribunal considers appropriate; and

(c) either -

(i) for an application for a minor civil dispute - costs stated in the rules as costs that may be awarded for minor civil disputes under section 102; or

(ii) for an application other than for a minor civil dispute -

(B) legal costs based on a scale stated in the rules.

(3) If the applicant applies for a decision by default under this section the principal registrar may make the decision.

(4) A decision by default given under subsection (3) is taken to be a final decision of the tribunal in the proceeding.

(5) The applicant must prove the respondent has been given a copy of the application before a decision by default may be made under this section.

• [19] In my view, upon the proper construction of s 50, there are three requirements that must be satisfied in order for an applicant in an application for minor civil dispute (minor debt) to file a request for a decision by default:

(a) the application must be one to recover a 'debt or liquidated demand of money' from the respondent;

(b) an enabling Act or the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) ('the Rules') states that the respondent must respond to the application within a stated period; and

(c) the respondent has not responded to the application within the stated period.

• [20] Was the MCD Application one to recover a 'debt or liquidated demand of money'?
• [21] In Hi Dow Australia Pty Ltd v Shivlosh Australia Pty Ltd,[7] the Appeal Tribunal said:[8]

[23] The QCAT Act does not define "debt or liquidated demand of money".

[24] Generally a claim is liquidated when the monetary sum representing the claim is ascertained, or capable of being ascertained by calculation of a formula, rather than being ascertainable only by an assessment which involves the exercise of a discretion and/or opinion.

(citation omitted)

• [22] In the present case, Metis Machinery claimed a fixed sum comprising the full amount paid for the scraper which was sought to be recovered on the basis that the machine was inoperable and was rejected by Metis Machinery. In my view, at least on the face of the material before the Registrar, the claim of Metis Machinery was one to recover a liquidated demand of money within the meaning of s 50(1)(a) of the QCAT Act.

• [23] Rule 45 of the Rules applies if a respondent to an application for a minor debt claim wishes to respond to the application. Subrule 45(2) provides that:

(a) be made -

(i) within 28 days after the respondent is given a copy of the application; and

(ii) in the approved form; and

(b) have attached to it a statement -

(i) answering the applicant's assertions in the application; and

(ii) stating any amount the respondent claims to owe the applicant, how any amount owing is worked out, and why the respondent claims to owe that amount; and

(c) comply with any requirements about the response stated in a practice direction; and

(d) be filed.

• [24] For the purposes of s 50(1)(b), the stated period is 'within 28 days after the respondent is given a copy of the application'.

• [25] In my view, there is a question of whether Metis Machinery satisfied the requirement in s 50(1)(c) of the QCAT Act.
• [26] The Appeal Tribunal directed that the parties file any written submissions addressing whether Metis Machinery filed the Request prior to the elapse of the time for Weranga Property to file a Response to the application for minor debt claim and, if so, whether the default decision was irregularly made and should be set aside.
• [27] Only Metis Machinery filed submissions in response to the direction ('Metis Machinery's further submissions').
• [28] On 5 March 2025, Metis Machinery filed an affidavit of service of the MCD Application. Mr Tweddell affirmed that the MCD Application was served on Weranga Property on 26 February 2025. I consider that Metis Machinery's further submissions raise a question in relation to the timing and validity of the service of the MCD Application. This is addressed below. Subject to that, for the purpose of analysing the third requirement, I will assume that service was effected on 26 February 2025.
• [29] The Request was filed on 26 March 2025.
• [30] In my view, the initial question for determination is whether the 28 day period prescribed by r 45(2)(a) of the Rules had elapsed prior to the filing of the Request on 26 March 2025.
• [31] Metis Machinery submits that:[9]

The time between 26 February 2025 (being the date of service) on 26 March 2025 (being the date the Application for Decision by Default was filed) was 28 days. The time between 26 February 2025 (being the date of service) and 2 April 2025 (being the date the Tribunal processed the Application for Decision by Default) was 35 days.

• [32] Subsection 38(1) of the Acts Interpretation Act 1954 (Qld) ('the AIA') provides:

If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and -

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case - by including the day on which the purpose is to be fulfilled.

• [33] The 28 day period prescribed by rule 45(2)(a) of the Rules began on the date on which the MCD application was given (served) on Weranga Property, namely, 26 February 2025. In my view, by operation of s 38(1) of the AIA, the date of service (26 February 2025) was excluded from the calculation, and the 28th day of for filing the Response was included. The consequence of this is that the first day for calculating the 28 day period commenced on 27 February 2025. By my calculation, the 28 day period ended on 26 March 2025. In my view, the Request was filed prematurely because the 28 day period for the filing of the Response had not elapsed prior to the filing of the Request. The Request should have been filed no earlier than 27 March 2025.
• [34] In CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd ('CB Ellis'),[10] McGill DCJ said:[11]

... It is of course well recognised that if the judgment was entered irregularly the defendant is entitled to have it set aside ex debito justitiae. It has been said that where a plaintiff proceeds by default every step must comply strictly with the rules, so that it is a matter strictissimi juris ...

• [35] In CB Ellis, the Court was concerned with circumstances in which both the request for default judgement and the giving of the default judgement occurred prior to the expiry of the time allowed under the Uniform Civil Procedure Rules 1999 (Qld). As I read the reasons of McGill DCJ, each of those matters was treated as an irregularity (and I respectfully agree with that conclusion).
• [36] His Honour said:[12]

The time required under rule 137 extended to and included 23 September 2005. It was not possible to say that the defendant had not filed a notice of intention to defend within that time until after its expiration, so the division did not apply until after 23 September. Accordingly, as at 23 September rule 283(2) which permits the plaintiff to file a request for judgment did not apply, and the plaintiff was not entitled to file the request for default judgment on that day. In addition, rule 283(3) which permits the registrar to give judgment did not apply, and the registrar was not entitled to give judgment, as he did, on 23 September 2005. On the face of the documents filed on 23 September 2005, they had been filed too early, and the deputy registrar ought not to have signed judgment in reliance on them. Unfortunately, this must have been overlooked by the deputy registrar who did sign the judgment.

(emphasis added)

The problem with this argument, in my opinion, is that it does not get over the proposition that the judgment which was given by the court was one which ought not to have been given. Further, the request for default judgment upon which it was given was one which ought not to have been filed. At the time that request was filed, the plaintiff's solicitors knew nothing of the posting log register and its contents, and had no evidence as to the actual delivery of the documents on 24 August. They were at that time relying on the presumption in the Act, but by mistake had sought to rely on it prematurely. I suppose this is the risk you run when trying to sign judgment at the earliest possible opportunity, the risk of having miscalculated the period and applying too soon. It is better to be safe than sorry.

(emphasis added)

• [38] His Honour concluded that the rules had not been complied with, and it followed that the judgement was irregular.[14] His Honour set aside the judgment.[15]
• [39] In my view, even if the date of service was 26 February 2025, Metis Machinery was not entitled to file the Request under s 50 of the QCAT Act and, as a result, Metis Machinery was not entitled to a decision by default. It follows that the default decision was irregularly entered.
• [40] Metis Machinery further submitted:[16]
  1. The Appellant has admitted receipt of the Application. The fact that the Appellant intentionally and knowingly did nothing thereafter until after a Decision by Default was made is a matter for the Appellant, and should not be interfered with by the Tribunal.
  2. The Appellant had 35 days from the date of receipt of the Respondent's initiating Application to file any Response before the Tribunal granted Judgment in favour of the Respondent in Default of Appellant having filed a Response. Indeed, had the Appellant filed any Response in the preceding 35 days on or before 2 April 2025 (being the date the Tribunal processed and granted Judgement by Default), Judgment would not have been entered. The Appellant had time. It simply chose to not act during that time.
  3. The Respondent submits that it would be an abuse of process to essentially ignore the Tribunal's Rules as though they did not exist or have any force or effect just because the Appellant now wants to provide a Response (despite having had 35 days to do so before Judgment was entered against it), which would significantly prejudice the Respondent by requiring the Respondent to start all over again, further delaying the recovery of the monies due and owing to it since the initiating Application was filed back in February for (what is likely to be) several months.
• [41] In my view, none of the matters raised overcomes the fundamental issue that the default decision was entered irregularly.
• [42] I am satisfied that there is a reasonable argument that the default decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error. I grant leave to appeal. For the same reasons, I consider that the appeal should be allowed, the default decision set aside, and the matter returned to the Tribunal for reconsideration.
• [43] In any event, I consider that service was effected after 26 February 2025 for the following reason.

• [44] As noted, the affidavit of service filed below for that service had been affected on 26 February 2025.
• [45] In Metis Machinery's further submissions it is submitted:[17]

James Tweddell, on behalf of the Respondent, swore an Affidavit of Service on 5 March 2025 that on 26 February 2025 at 10.18am he:

a) Posted a copy of the Application to 37 Day Street, Tara; and

b) Emailed a copy of the Application to craig.davison@raywhite.com

• [46] With respect to the service by posting, the date of posting was not the date of service.
• [47] The rule-making power in the QCAT Act is found in s 224. The subject matter for the rules is set out in Schedule 2 to the QCAT Act. The subject matter includes the way a notice or document must or may be given, including substituted service (see s 7 of Schedule 2).
• [48] Rule 39 of the Rules provides for the ways in which a document may be given to the entity. One of the ways is by sending it by post to the relevant address (r 39(1)(b)).
• [49] Subsection 39A(1) of the AIA provides:

If an Act requires or permits a document to be served by post, service -

(a) may be effected by properly addressing, prepaying and posting the document as a letter; and

(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.

• [50] Section 109X of the Corporations Act 2001 (Cth) provides that a document may be served on a company by, relevantly, leaving it at, or posting it to, the company's registered office. Section 29 of the Acts Interpretation Act 1901 (Cth) provides:

(1) Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This section does not affect the operation of section 160 of the Evidence Act 1995.

• [51] It follows that, insofar as service of the MCD Application was effected by posting, it was taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post. There is no evidence, in the material, of the applicable period of ordinary course of post but, plainly, the letter containing the MCD Application would not have been delivered in the ordinary course of post on the same day as it was posted. It follows that service of the MCD Application, by post, was not effected on 26 February 2025. Consequently, even on Metis Machinery's calculation of time, the Request was filed prematurely.
• [52] With respect to the purported service by email, the email was sent to the email address identified in paragraph [45] above. At part B, section 3 of the affidavit of service, the box that was ticked states: 'I emailed the copy to the email address that was included in the entity's address for service.'
• [53] Subrule 39(1)(d) of the Rules provides for service by email in the following terms: 'if the entity has an address for service that includes an email address - by sending it to the entity at that address'. The circumstances in which an originating application may be served by email was addressed in Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust.[18] I adopt those observations here. In short, I consider that the email address the MCD Application was sent to was not Metis Machinery's 'address for service' within the meaning of r 39(1)(d) of the Rules and the sending of the email did not constitute effective service of the MCD Application.
• [54] Consequently, the only effective service was by post and that was effected on a date after 26 February 2025 (and the particular date of service is dependent upon evidence of the ordinary course of post applicable in the present case).

• [55] For the reasons set out above, I make the following orders:
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The default decision made on 2 April 2025 is set aside.
  4. The matter is returned to the Tribunal for reconsideration.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') s 142(3)(a)(i).

[2] [2022] QCATA 25, [2].

[3] [2021] QCATA 61, [14].

[6] [2024] QCATA 99, [8]-[9] (Judicial Member DJ McGill SC).

[7] [2015] QCATA 155.

[8] Ibid [23]-[24] (Senior Member Stilgoe OAM (as the President of the Land Court then was) and Member Traves (as Senior Member Traves then was)).

[9] Metis Machinery's further submissions, [8].

[10] [2005] QDC 399.

[11] Ibid [2]. See also Cooper v O'Connor [2016] QCATA 180, [66]; Brian Choi (also known as Hyung Seok Choi) v Kwangsu Choi as Trustee for the Choi Family Trust [2021] QCATA 16, [34].

[16] Metis Machinery's further submissions, [9]-[11].

[18] [2021] QCATA 16, [57]-[71].