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Queensland Judgments
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  • Unreported Judgment

Versace Timbers Pty Ltd v Stojanovic

 

[2019] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Versace Timbers Pty Ltd v Stojanovic [2019] QDC 127

PARTIES:

VERSACE TIMBERS PTY LTD
ACN 010 145 374
(plaintiff)

v

MICHAEL STOJANOVIC
(defendant)

FILE NO/S:

3927 of 2018

DIVISION:

Civil

PROCEEDING:

Application for default judgment

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

30 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2019

JUDGE:

Porter QC DCJ

ORDER:

  1. Default judgment in the amount of $96,922.70.
  2. Application for default declaratory relief is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – where the plaintiff alleges that money is owing under a contractual agreement and that certain property is charged in their favour – where substituted service has been effected and no defence has been filed – where the plaintiff applies for default judgment seeking a money order and declaratory relief – where the application is made under rule 288 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the pleadings justify an order for declaratory relief – whether default judgment for money owing or declaratory relief may be ordered

Uniform Civil Procedure Rules 1999 (Qld), r 281, r 283, r 288, r 658

Egan v Posman [2018] QDC 53
Oversea-Chinese Banking Corp Ltd v Becker [2004] 1 Qd R 409

COUNSEL:

On the papers

SOLICITORS:

On the papers

  1. [1]
    This is an application for a default judgment under r. 288 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).   That rule provides:
  1. (1)
    This rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283, 284, 285 or 286.
  2. (2)
    The plaintiff may apply to the court for a judgment.
  3. (3)
    On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.
  1. [2]
    The plaintiff seeks two forms of order for judgment in default:
  1. (a)
    Judgment in the amount of $96,922.70 or $91,863.33, an amount that includes costs and interest (calculated by two alternative methods) incurred up to the date its application was filed. 
  1. (b)
    A declaration that by Clause 2 of the guarantee agreement entered between the plaintiff and defendant on or about 20 September 2017:
  1. (i)
    The defendant granted a charge to the plaintiff in respect of the defendant’s estate and interest in Lot 92 Registered Plan 116082 Title Reference 14171044 (the Property); and
  1. (ii)
    The said charge charges the interest of the defendant in the Property with payment of all monies due and owing by the defendant to the plaintiff.
  1. [3]
    The rules referred to in rule 288(1) include, relevantly, rule 283 which provides:
  1. (1)
    This rule applies if the plaintiff’s claim against the defendant in default is for a debt or liquidated demand, with or without interest.
  2. (2)
    The plaintiff may file a request for judgment for an amount not more than the amount claimed, together with—
  1. (a)
    if interest is claimed—interest calculated, to the date of judgment, at the rate specified in the claim or in a practice direction for the Civil Proceedings Act 2011, section 58; and
  2. (b)
    the following costs—
  1. (i)
    costs for issuing the claim;
  2. (ii)
    costs for obtaining judgment;
  3. (iii)
    any other fees and payments, to the extent they have been reasonably incurred and paid.
  1. (3)
    If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
  2. (4)
    For this rule, a debt or liquidated demand includes interest if the rate of interest is—
  1. (a)
    limited to the rate specified in, and calculated in accordance with, an agreement; or
  2. (b)
    not higher than the rate specified in a practice direction for the Civil Proceedings Act 2011, section 58.
  1. (5)
    Subrules (6) to (8) apply if interest is claimed under the Civil Proceedings Act 2011, section 58.
  2. (6)
    If the plaintiff elects to abandon the claim for the interest, the claim is taken to be a claim for the debt or liquidated demand without interest.
  3. (7)
    If the plaintiff elects to accept interest at a rate not higher than that specified in a practice direction for any period mentioned in the direction, the registrar may award interest under the direction, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started.
  4. (8)
    If the plaintiff seeks to recover a higher rate of interest than that specified in a practice direction for any period mentioned in the direction, the court may—
  1. (a)
    decide the interest, if any, that is recoverable; and
  2. (b)
    direct that judgment be given for the interest, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started; and
  3. (c)
    direct that judgment be given against the defendant under this rule.
  1. (9)
    If the period for which interest is to be awarded is not specified in the statement of claim, interest is recoverable only from the date of the issue of the claim.
  2. (10)
    If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

Note—

Under rule 982, the matter could be referred to a judge or magistrate for disposal, or for consideration and referral back, if the circumstances set out in that rule apply.

  1. [4]
    It can be seen that the claim for default judgment for the debt or liquidated demand arises under rule 283(1) UCPR rather than rule 288. To the extent it is in doubt, I have previously expressed the view that it is open to a party to apply to this Court to grant default judgment under that rule and that if it does so, this Court may exercise the power under rule 283.[1]  I see no reason to depart from that conclusion.
  1. [5]
    I am satisfied that the precondition for default judgment under rule 281 of the UCPR has been made out.
  1. [6]
    A substituted service order was made by Moynihan DCJ on 1 April 2019 which permitted service in the manner set out in his Honour’s order. His Honour permitted service to be effected by posting to five addresses and by sending the documents to the defendant by his Facebook page. His Honour ordered that service be deemed to be effected seven days after the compliance with the last of the steps identified in the order.
  1. [7]
    Ms Jarvin for the plaintiff has sworn to compliance with his Honour’s order on 18 April 2019. Accordingly service was deemed to have occurred on 25 April 2019. The time for filing of a defence expired therefore under rule 137 on by the latest on 23 May 2019. No defence was filed by that date.
  1. [8]
    The plaintiff is therefore entitled, without more, to judgment in default on its claim to the extent it comprises a claim for a debt or liquidated demand. It is evident on the face of the pleading that that claim is within that description. It is a claim for money owing for the supply of goods. The plaintiff also claims interest under the relevant agreement, or in the alternative under the Civil Proceedings Act 2011 (Qld).  Interest under the agreement is claimed in the statement of claim at 10 per cent.  It is calculated up to the date of the application in the outline of submissions.  Accordingly, the plaintiff is entitled to judgment for that sum along with scale costs claimed as articulated in the submission.  I therefore order default judgment under rule 283 in the amount of $96,922.70.
  1. [9]
    It is irrelevant in my view that the application does not refer to rule 283. The Court has express power to do so (see rule 658(1)) and no prejudice flows to the defendant from the Court considering the application for judgment for the money sum under the proper rule.
  1. [10]
    I now turn to consider the application for declaratory relief. As to that, the Court may give the judgment it considers justified on the pleadings. It is therefore necessary to summarise the statement of claim. The plaintiff pleads as follows.
  1. [11]
    On or about 20 September 2017, the plaintiff entered into an agreement with Mish Developments Pty Ltd (Mish) to supply goods.  The defendant is said to be a director of Mish.
  1. [12]
    At around the same time, the defendant is said to have entered into an agreement with the plaintiff in which he agreed to guarantee performance by Mish of its contractual obligations (the guarantee agreement).  The plaintiff is also said to have agreed to indemnify the plaintiff in respect of any loss arising as a result of Mish’s breach or non-performance of its contractual obligations.  Pursuant to the guarantee agreement, the defendant was said to have agreed to charge his interest in all land held by him in favour of the plaintiff.
  1. [13]
    During September and October 2017 the plaintiff supplied goods to Mish and sought payment of $89,732. Partial payment was made by Mish but invoices in the amount of $81,422.72 are said to remain outstanding.
  1. [14]
    As to the basis for the alleged charge, the statement of claim alleges that:

18. The Defendant is a registered proprietor of the estate in fee simply described as Lot 92 Registered Plan 116082 Title Reference 14171044 described as 11 Margaroola Avenue Biggera Waters in the State of Queensland (the “Property”).

19. Pursuant to the Guarantee the Defendant charged his interest in all land held by him in favour of the Plaintiff to secure his indebtedness to the Plaintiff.

Particulars

Clause 2 of the Guarantee

  1. [15]
    In my view, the effect of the charging clause alleged in paragraph 19 was to charge land held by the defendant at the time of entry into the guarantee agreement.[2]  If the clause charged future property, one would expect it to say so expressly.  As pleaded it did not.  It was therefore necessary to make out the entitlement to the charge over the Property to establish that it was owned at the time of entry into the guarantee agreement.
  1. [16]
    Nowhere in these paragraphs, or indeed anywhere else, does the plaintiff plead that the defendant owned the Property on or about 20 September 2017, when the guarantee agreement was entered into. I therefore cannot be satisfied on the basis of the pleading that the defendant owned the Property at the time the guarantee agreement was entered into and, therefore, that Clause 2 of this agreement served to create a charge in the plaintiff’s favour over the Property based on the allegations in the statement of claim.
  1. [17]
    Consequently, the plaintiff’s application for default declaratory relief must be dismissed.

Footnotes

[1]Egan v Posman [2018] QDC 53 at [16] to [27].

[2]Of the kind identified by Chesterman J in Oversea-Chinese Banking Corp Ltd v Becker [2004] 1 Qd R 409 at [5]-[6].

Close

Editorial Notes

  • Published Case Name:

    Versace Timbers Pty Ltd v Michael Stojanovic

  • Shortened Case Name:

    Versace Timbers Pty Ltd v Stojanovic

  • MNC:

    [2019] QDC 127

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    30 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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