Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd
[1999] QDC 251
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- Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd[1999] QDC 251
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Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd[1999] QDC 251
Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd[1999] QDC 251
DISTRICT COURT | Plaint No 69 of 1994 |
CIVIL JURISDICTION
JUDGE DODDS
LAURELMONT PTY LTD Plaintiff
(ACN 010 866 378)
and
STOCKDALE & LEGGO (QUEENSLAND) PTY LTD First Defendant
(ACN 055 456 060)
and
STOCKDALE & LEGGO PTY LTD Second Defendant
(ACN 004 349 713)
and
WILLIAM ROBERT DARBY Third Defendant
and
MARK ANTHONY HALL Fourth Defendant
and
STOCKDALE & LEGGO (SUNSHINE COAST) PROJECT MARKETING PTY LTD Fifth Defendant
(ACN 056 476 423)
MAROOCHYDORE
DATE 23/08/99
ORDER/REASONS
HIS HONOUR: This action commenced I think in 1994. On 20 April 1998, an order was made by consent requiring, as I recall it, and I have not referred to the actual order, that answers to interrogatories be filed within 14 days from service of interrogatories. The plaintiff administered interrogatories to the first and second defendants on 25 January 1999.
Between the date of the order on 20 April 1998 and 25 January 1999, when interrogatories were delivered for the consideration of the first and second defendants, the plaintiff sought to have the defendants admit factual matters. This was not done. Despite requests after the interrogatories had been delivered for them to answered, no answers were forthcoming. Eventually an application was brought to compel orders, leading to Her Honour Judge Wolfe on 15 June 1999 ordering that the first and second defendants deliver their answers to the interrogatories to the plaintiff at its address for service at 24 Cedarleigh Drive, Tewantin, Queensland, facsimile and telephone (07) 5447-1015 on or before 4 p.m. 29 June 1999 and further ordering that, in default of compliance with that order by the first defendant or the second defendant or both of them, then the entry of appearance and defence of the first and second defendants, so far as it concerns that defaulting party, should be struck out and they, or the defaulting party, as the case may be, should be placed in the position as though they or the defaulting party, as the case may be, had not filed an entry of appearance and defence in the action.
Her Honour further ordered the plaintiff be at liberty to enter default judgment against the defaulting first and second defendants or either of them, as the case may be and that the filing of an affidavit by the plaintiff deposing to the first and second defendants or either of them, noncompliance with the order, should be sufficient proof of the failure to comply with the order.
It appears that there was a flurry of activity on 29 June attempting to comply with the order made by Her Honour. Mr Stace, the secretary of the plaintiff, for one reason or another, was unavailable and it appears that attempts to send a facsimile to him were to no avail.
It also appears that the sworn answers to interrogatories were not available for transmission or service on Mr Stace or the plaintiff until some time on 29 June subsequent to 4 p.m.
On 30 June the plaintiff obtained judgment against the first and second defendants in default of pleading. At a later date in July His Honour Judge Boulton assessed damages.
The first and second defendants were represented before Judge Wolfe. It appears the solicitor acting for them as a town agent on that occasion provided details of Her Honour's orders to the first and second defendants' principal solicitors.
There was no appearance by the first and second defendants before Judge Boulton when he assessed damages, and that was because no notice had been given to the first and second defendant of the date for the assessment. Under the old Rules of the District Court no such notice was necessary.
The Uniform Civil Rules, however, had come into force by the time Judge Boulton assessed damages. Under the Uniform Civil Rules notice is required to be given to persons such as the first and second defendant.
The first and second defendants have now sought orders from the Court that the judgment in favour of the plaintiff obtained on 30 June be set aside pursuant to Rule 290 or alternately Rule 302 of the Uniform Civil Procedure Rules. I think that Rule 290 is the correct rule.
They further seek an order that the judgment entered for the plaintiff against the first and second defendants on 26 July, that is, the judgment for the damages assessed by Judge Boulton, be set aside pursuant to Rule 302 or alternatively Rule 667 of the Uniform Civil Procedure Rules.
I am satisfied that the plaintiff was entitled to seek judgment on 30 June and that the judgment entered on that date was regularly entered.
As I commented to counsel for the first and second defendants during his submissions, particularly given the history of this matter, the plaintiff - or Mr Stace on behalf of the plaintiff was not in any way obliged to keep himself available on the last or any other day of the 14 day period allowed by Judge Wolfe, so as to be available for the first and second defendants to either seek an extension of time or to assist them in serving him with answers to interrogatories.
Answers to interrogatories should have been provided from some time in January 1999, and it appears it was only after Judge Wolfe made the guillotine order and only towards the latter part of the 14 day period she allowed that a flurry of activity occurred to provide the answers required.
That, however, is not the end of the matter. The entry of appearance and defence of the first and second defendants raise triable matters. It is, it seems to me, only in fairly exceptional situations that a Court will refuse a defendant an opportunity of having the matters raised in a defence litigated.
In National Australia Bank Ltd v Singh 1995 1 QR 377 at 380 the Judges constituting the Court of Appeal said, “It is not often that the Court will refuse the opportunity of defending to a defendant who has an apparently good ground of defence when no irreparable prejudice would thereby be done to the plaintiff, even though the defendant's explanation for allowing judgment to go by default may be dubious.”
I am inclined to the view that notice should have been given to the defendants of the assessment of damages. By the time that occurred Uniform Civil Procedure Rules were in force and, in my view, applied to the assessment, even though judgment in default had been obtained pursuant to the old Rules.
That consideration is not necessarily what persuades me to the view that I should give leave to the defendants to defend and set aside the judgment. The main reason I do that is because it seems to me that the authority I have referred to indicates that in this particular case that is what I should do.
Accordingly, leave to the defendants to defend in terms of the entry of appearance and defence of each of them filed 8 August 1994.
Order the judgment entered in favour of the plaintiff against the first and second defendants on 30 June 1999 be set aside.
I think Rule 290 is the appropriate rule.
Further, order that judgment entered in favour of the plaintiff against the first and second defendants on 26 July 1999 be set aside.
I think the appropriate rule is Rule 667(2).
I order the defendants - first and second defendants pay the plaintiff's costs of entering judgment on 30 June 1999, the costs of the assessment of damages and judgment of 29 July 1999, and the costs of this application.
I have included the costs of 29 July 1999, even though I consider under the new Rules notice should have been given to the defendants because, in my view, this whole situation arose because of the - what could be described as the contumelious disregard by the first and second defendants of the Rules of the Court requiring answers to interrogatories to be given within a period of time.
I intend to certify this matter be tried speedily. Do you want to be heard on that?
MR WILSON: I'm sorry, Your Honour?
HIS HONOUR: I'm going to certify this matter be tried speedily. It's been around far too long.
MR WILSON: Yes.
HIS HONOUR: And there's a large sum of money involved.
MR WILSON: I have nothing to say in opposition to that, Your Honour.
HIS HONOUR: I order the action be tried speedily.
Now, Mr Stace, that means that the action will go the top of the call over list or very close to the top of the call over list and will be set down for trial, and we'll get the matter finalised one way or the other. So you'll need to be ready to proceed. Are you going to appear for yourself?
MR STACE: I'm not sure, Your Honour, on that.
HIS HONOUR: It's not an easy task, you know.
MR STACE: No, I understand that.
HIS HONOUR: And it's rather difficult to maintain one's objectivity in conducting a matter when you're so involved in it. So it's perhaps a good idea to get competent commercial counsel, not just any counsel, but competent commercial counsel to appear on your behalf. All right?
MR WILSON: Did Your Honour want me to give you the date of that filing for the-----
HIS HONOUR: Yes, I'll include - if you'll give me that, it will be included in the order.
MR WILSON: 8 August 1994, Your Honour.
HIS HONOUR: 8 August 1994.