Yves v We Build Pools Pty Ltd [2025] QCATA 27

"There is no genuine dispute about the money that is the subject of the claim..."

• [5] Now before the Tribunal there is an application by Mr Yves (the applicant) for leave to appeal filed on 15 February, 2024.
• [6] On 7 March, 2024 the Tribunal made orders for the conduct of the present case and accordingly it is now necessary to decide whether leave to appeal should be granted, the appeal allowed and the decision set aside. In such a case, the matter would then fall to be heard on the merits in the usual course.

• [7] The legal position is that leave to appeal should ordinarily be granted where it appears that there is a reasonable argument that an error was made such that an appeal would be required to correct a substantial injustice to the applicant that was caused by the error.[1]

• [8] The applicant submits that the minor dispute should have been commenced in the building dispute resolution jurisdiction rather than the minor civil dispute jurisdiction. Because of this, it is submitted, the applicant suffered prejudice by being deprived of the process which would have otherwise occurred, such as a directions hearing and compulsory conference. It is submitted that the need to have lodged a building dispute cannot be waived.
• [9] The applicant also submits that he has a prima facie defence concerning an asserted repudiation of the contract by the respondent.
• [10] The applicant accepts that that he must show that the decision in question was wrong, not just that the discretion could have been exercised differently.
• [11] It is submitted that the applicant's distracting work obligations were not given sufficient weight in the decision not to set aside the default decision on the claim.

• [12] The respondent points out that in considering whether there was a prima facie defence, the Tribunal could only consider what was before it at that time, not what is subsequently asserted.
• [13] It is also submitted that under section 61 of the QCAT Act the Tribunal may waive compliance with a procedural requirement.
• [14] The respondent submits that commencing the dispute as a minor civil dispute is only a failure to comply with a procedural requirement. It submits that had the dispute been commenced as a domestic building dispute there would not have been any additional time provided for the benefit of Mr Yves.
• [15] It is submitted that the excuse provided by Mr Yves for not defending the claim within the time allowed was not a satisfactory one and that there was not shown to be a prima facie defence such that the default decision should be set aside.
• [16] It is pointed out that the time within which a defence must be filed was shown on the application form served on Mr Yves.
• [17] It is submitted that the material before the Tribunal did not demonstrate a prima facie basis for disclosing a legitimate dispute that the amount claimed was owing, the possibility of a cross-claim being distinguished from a defence to a claim.
• [18] The respondent company submits, in summary, that there is no reasonably arguable case of error and that there are no reasonable prospects of Mr Yves obtaining substantive success on the merits of the case. It is accordingly submitted that leave should not be granted or, if it is, the appeal should be dismissed.

• [19] What is now before the Tribunal is an application for leave to appeal the decision of the Tribunal on 17 January, 2024 to dismiss the application by Mr Yves made on 8 January, 2024 to set aside the default decision of 18 December, 2023, which ordered that he pay $5,717.30 to the respondent company.
• [20] The reasons expressed by the Tribunal on 17 January, 2024 for the decision now being considered included, as has already been mentioned, the following passage:

"There is no genuine dispute about the money that is the subject of the claim..."

The Tribunal, after finding this, immediately continued the sentence as follows:

"... and the application to set aside the default decision should be DISMISSED."

• [21] It is clear that the first-stated passage was the immediate reason and justification stated for the Order made.
• [22] Included in the application to set aside the decision, Form 55, filed on 8 January, 2024, was the claim that the company was charging for a service that had not been completed.
• [23] In Part E, under "1. Explain the facts you are relying on and your reasons for making this application:" the following passage appears in the first two lines:

"First fact and main one is - WBP is charging an amount for a service they haven't completed."

• [24] While the additional written submissions provided with Form 55 tend to lead attention away from this point, it is part of the record and the foundation of the reasons provided in the application to set aside the default decision.
• [25] The finding referred to above was not able to have been arrived at, given the presence of this dispute.
• [26] Accordingly, the Tribunal is satisfied that there is a reasonable argument that an error was made such that an appeal would be necessary to correct a substantial injustice to the applicant that was caused by the error of the Tribunal in making the finding which has been set out above.

• [27] Leave to appeal should be granted and the appeal allowed. The matter should be progressed to a hearing on the merits in the Tribunal.

• [28] The application which commenced the substantive case before the Tribunal was one for a minor debt, based on an unpaid invoice. The validity of the debt was not challenged at the time that the decision by default was made. There was a liquidated demand for money and the Tribunal's process with respect to it was regular, and remains so. The presumption of regularity is not displaced by hindsight based on subsequent events, in this case a challenge to the validity of the claimed debt.
• [29] The Tribunal is not deprived of jurisdiction by the choice of whether this claim was put on its minor civil dispute list or building dispute list. It remains seized of the matter in its present form and must proceed to deal with it. It is not necessary for the resolution of the matter now being considered, nor is it desirable, to make any finding now about what list the matter should be placed on hereafter. The steps to be taken from this point on should be decided by the Tribunal seized with determining the merits of the dispute when it has had the benefit of considering submissions on the point from the parties. It would not be appropriate to seek to impose restrictions on the Tribunal at this point in time. The matter must be allowed to proceed.
• [30] The Tribunal hearing the substantive matter may wish to hear submissions from the parties addressing whether further progress of the matter should include transferring it to the Tribunal's building list if it may be more appropriately dealt with there. Consideration of submissions concerning the relevance, if any, of Sienna Indiana Pty Ltd v Property Technologies Pty Ltd[2] may be of assistance in this regard.

1. Leave to appeal is granted.
2. Appeal is allowed.
3. The matter will be heard and determined on its merits by the Tribunal.

[1] Pickering v McArthur [2005] QCA 294.

[2] [2020] QCATA 79 [8].