Fitness Consultancies International Pty Ltd v Lynes
[1999] QDC 238
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- Fitness Consultancies International Pty Ltd v Lynes[1999] QDC 238
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Fitness Consultancies International Pty Ltd v Lynes[1999] QDC 238
Fitness Consultancies International Pty Ltd v Lynes[1999] QDC 238
DISTRICT COURT | Appeal No 7 of 1999 |
APPELLATE JURISDICTION
SENIOR JUDGE SKOIEN
FITNESS CONSULTANCIES INTERNATIONAL PTY LTD (ACN 077 458 596) | Appellant/First Defendant |
and
STEPHEN JOHN LYNES | Respondent/Plaintiff |
TOOWOOMBA
DATE 09/09/99
JUDGMENT
HIS HONOUR: This is an appeal against a dismissal on 2 June 1999 by Miss Hall Stipendiary Magistrate, of an application to her to set aside a default judgment obtained by the respondent on 12 January 1999. The application to set aside was made on 6 May 1999.
The cause of action (although the plaint and summons barely hint at it) arises from an alleged agreement between the appellant and the respondent in relation to the sale of fitness programs. The respondent's claim is that the appellant has failed to remit to him moneys which should have been remitted pursuant to the agreement.
The first ground of appeal, which was lightly argued, related to whether or not the plaint was properly served on the appellant. The evidence before Her Worship established that the documents were duly sent by registered post, as they can be under the Corporations Law. That in my view proves service, and the fact that the principal of the appellant may not have become aware of the receipt of the documents is beside the point. I decide therefore that there is nothing in that ground of appeal.
The next argument related to questions of delay. There was indeed delay, but in National Australia Bank Limited v. Singh (1995) 1 Qd.R. 377, the Queensland Court of Appeal made it clear that in the absence of irreparable prejudice to the respondent, and even though the appellant's explanation for allowing the default judgment may be dubious, the paramount consideration is whether or not the appellant has an apparently good ground of defence.
There was indeed delay in applying to set aside the judgment although there was some prior correspondence indicating the appellant's intention to apply. However, this is a mere money claim and it is difficult to prove irreparable prejudice in such cases. More to the point there was nothing in the material before Her Worship to indicate irreparable prejudice. An award of costs can overcome the undoubted prejudice which the respondent would suffer in having his judgment set aside.
So what remains is a consideration whether the appellant showed before Her Worship an apparently good ground of defence. That of course does not mean that the appellant had to establish a defence at that time. It is no part of a court's functions on such an application as Her Worship had before her, to decide issues of credit in the absence of proper evidence and cross-examination after the preparation of factual issues for trial. The authorities which lay this down are collected by Bray C.J. in Watson v. Anderson (1976) 13 S.A.S.R. 329 at 341.
The affidavit of Sophia Karsandis, the managing director of the appellant, swears that the person David McCann, who signed the agreement which is the basis of the claim, was not an agent of the appellant. Rather he was an employee of another entity which shared offices with the appellant. There is a very clear denial in the affidavit of any authority by the appellant to McCann to enter into contractual relations with anyone on behalf of the appellant.
Her Worship notes that this was the issue, but in my view then does not actually deal with it. Rather she refers to the fact that the appellant appears to have received the benefit of money paid under the contract. That, in my view, would be one aspect to be considered on a trial of the very issue itself. But gained experience of corporate and business procedures brings to mind many examples of occasions in which a relationship other than principal and agent can result in the ultimate passage of money to, and therefore benefit obtained by, an entity such as the appellant here.
There is also the fact (which may constitute one of the circumstances to be taken into account on an ultimate decision on the facts) that the respondent alleges that upon a telephone call made by him to the appellant's premises, an apparent employee of the appellant referring to McCann in such a way as to hold him out as a servant or gent of the appellant. Whether that evidence ultimately is found to be the truth, and if so whether it actually establishes the agency is a matter of fact which could not be determined on affidavit.
I am driven therefore to the conclusion that Her Worship did not deal properly with the central issue, that is the denial of agency. It follows that she could not have been satisfied that the appellant had no arguable defence to the action, and she was in error in dismissing the application.
I therefore allow the appeal and I set aside the default judgment entered on 12 January 1999. The defendant is given leave to defend within 28 days.
I order the appellant to pay the costs of the respondent in entering up the default judgment.
I further order the appellant to pay the respondent's costs of the application before Her Worship. I order that the costs of and incidental to this appeal be costs in the cause.
DISTRICT COURT | Plaint No 52 of 1998 |
CIVIL JURISDICTION
SENIOR JUDGE SKOIEN
GREENRIDGE BOTANICALS (AUSTRALIA) PTY LTD (ACN 010 633 100) | Plaintiff |
and
JAY NEVIN and JUSTIN NEVIN | Defendants |
BRISBANE
DATE 23/09/99
JUDGMENT
HIS HONOUR: I give judgment for the plaintiff for $69,835 with interest at the rate of 9 per cent on $61,973 from 2 April 1998 to 3 August 1998 and on $82,323 from 3 August 1998 to 4 November 1998, then on $69,835 from 4 November 1998 to 23 September 1999. I give judgment for the defendant against the plaintiff for $62,095.33 with interest on that sum from 2 April 1998 to 23 September 1999.
...
HIS HONOUR: An application was made by the defendant for costs on an indemnity basis under Rule 118 of the District Court Rules, now supplanted by the Uniform Practice Rules. This was based on the tender on 18 November 1998 of an offer to settle by the defendants on two alternative bases. The first was to pay to the plaintiff $25,000 inclusive of costs. The second was that each party pay their own costs of and incidental to the action.
The only authorities placed before me, which I must say accord with my understanding of the applicable principles, are Smallacombe v. Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 and Associated Confectionery (Aust) Ltd v. Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349. There is also an unreported decision in the Federal Court on 11 November 1998 by Moore J. in Hanave Pty Ltd v. LFOT Pty Ltd.
These authorities lay down the principle that to attract the provisions of rules such as Rule 118 there has to be certainty in the offer. The plaintiff in this case ought not to be required to enter into a calculation on what its costs might be. It might be remembered that serious disputes can arise even on the calculation of costs.
So in this case there was no certainty in the offer to settle of the actual amount which related to the claim. I therefore am unable to apply Rule 118 and to give the defendants the benefit of an order for costs on an indemnity basis.
It follows that the proper order for costs in a case such as this is that each successful party should recover the costs incurred in successfully presenting its claim. In this case the defendants are ordered to pay the plaintiff's costs of and incidental to its claim up to 15 May 1998, the date on which it was made clear to the plaintiff that there was to be no dispute as to the claim.
The defendants are entitled to their costs of and incidental to the prosecution of the counterclaim to be taxed and, further, there will be an order that the defendants recover on an indemnity basis any costs thrown away because of the plaintiff's admission made on 8 September 1999 - the first day of the trial - of paragraphs 4(a) and 4(b) of the defence and counterclaim.
...