Max Christmas Real Estate Pty Ltd v Hockley
[2005] QDC 404
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- Unreported Judgment
- Max Christmas Real Estate Pty Ltd v Hockley[2005] QDC 404
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Max Christmas Real Estate Pty Ltd v Hockley[2005] QDC 404
Max Christmas Real Estate Pty Ltd v Hockley[2005] QDC 404
DISTRICT COURT OF QUEENSLAND
CITATION: | Max Christmas Real Estate Pty Ltd v Hockley [2005] QDC 404 |
PARTIES: | MAX CHRISTMAS REAL ESTATE PTY LTD Plaintiff v stephen JOHN hockley Defendant |
FILE NO/S: | 83/2005 |
PROCEEDING: | Application to set aside judgment |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 18 November 2005 |
DELIVERED AT: | Southport |
HEARING DATE: | 14 November 2005 |
JUDGE: | Dearden DCJ |
ORDER: | Application dismissed |
CATCHWORDS: | PRACTICE – APPLICATION TO SET ASIDE JUDGMENT IN DEFAULT – Setting aside irregularly obtained judgment – Setting aside regularly obtained judgment – prima facie defence on its merits – misdescription of plaintiff – satisfactory explanation for not filing defence – delay Corporations Act (Cth) 2001 s 153 Property Agents and Motor Dealers Act 2000 Uniform Civil Procedure Rules r 290 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Champion v Fay [1983] 2 Qd R 416 Luka Brewery v Grundmann [1985] 2 Qd R 204 National Mutual Life Association of Australasia Ltd v Oasis Development Pty Ltd [1983] 2 Qd R 441 Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571 Saunders v Hammond [1965] QWN 39 Vosmaer v Spinx [1964] QWN 36 Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 Yankee Doodles Pty Ltd v Blendale Pty Ltd [1999] QSC 134 |
COUNSEL: | Mr B Cronin for the plaintiff The defendant appeared for himself |
SOLICITORS: | Johnsons Solicitors for the plaintiff |
- [1]This is an application by the applicant/defendant, Stephen John Hockley, to set aside a judgment obtained by the respondent/plaintiff, Max Christmas Real Estate Pty Ltd from Deputy Registrar Swann in the District Court at Southport on 12 August 2005. The judgment of the Court on that date was that the defendant pay to the plaintiff the sum of $78,652.81 including interest of $3,113.31 and $1,702.00 costs.
THE LAW
- [2]Uniform Civil Procedure Rules (“UCPR”) r 290 provides relevantly that: “The Court may set aside … a judgment by default … and any enforcement of it, on terms, including terms about costs and the giving of security, the Court considers appropriate.” The defendant/applicant, who appeared unrepresented, submitted that the judgment was irregularly obtained. It is clear that if there is a basis for this submission, then the Court has no discretion but to set aside an irregular judgment[1].
- [3]If, on the other hand, the judgment in default was regularly obtained, then the Court is obliged to consider the following matters in deciding whether or not to set aside judgment, namely:
- (1)Whether or not the defendant has given a satisfactory explanation for its failure to appear;
- (2)Whether or not there has been any delay in making the application to set aside the judgment; and
- (3)Whether or not the defendant has a prima facie defence on the merits to the claim on which the judgment is founded[2].
- (1)
SETTING ASIDE IRREGULARLY OBTAINED JUDGMENT
- [4]The applicant/defendant submits that there are three irregularities apparent on the face of the plaintiff’s claim, namely:
- The description of the plaintiff refers to a non-existent “person” because the ABN is incorrect;
- The address of “Apartment 17 Monaco” is incorrectly stated as “40 The Esplanade, Surfers Paradise” when it should be “120 The Esplanade, Surfers Paradise”;
- The purported date of appointment by the defendant of the plaintiff as his agent referred to in paragraph 23 of the claim (“14 May 2004”) is incorrect, and should, in fact, read “17 May 2004”.
- [5]I will now address each of those submissions in turn.
1. Misdescription of Plaintiff
- [6]It was not disputed that the ABN of the plaintiff, Max Christmas Real Estate Pty Ltd, contained beside the heading “Plaintiff” on the claim filed in the Southport District Court on 23 February 2005, is “29 089 487 990”. It is further accepted that the correct ABN for the respondent/plaintiff (contained in numerous documents exhibited to the applicant/defendant’s affidavit sworn 25 August 2005[3]) contained the correct ABN which is “27 089 487 990”. It is clear that the mis-statement of the ABN is a typographical error which has been reproduced in much of the documentation filed in the Court, including (interestingly) the defendant/applicant’s application and sworn affidavits. The applicant/defendant submits that the default judgment is, in these circumstances, “in favour of a non-existent person” and that this irregularity alone is sufficient to persuade the Court that the judgment has been irregularly obtained and should be set aside.
- [7]The respondent/plaintiff submits that the requirement to place an ABN or ACN after a company name arises pursuant to Corporations Act (Cth) 2001 s 153, and that this number is not the “identity” of the company but rather the company name is its identity. The respondent/plaintiff submits further that a typographical error (which it acknowledges) in the ABN does not amount to a mistake as to the identity of the plaintiff.
- [8]Corporations Act (Cth) 2001 s 153 relevantly provides that: “A company must set out its name on all its public documents…”[4] and also sets out the obligation for a company, if the company’s ACN is not used in its name, to follow the company’s name with its ACN or ABN[5]. Relevantly, failure to comply with s 153(1) or (2) is an offence. However, an incorrect ABN, in my opinion, does not amount to an invalidity such that the judgment entered could be said to be irregular. It is clear that the judgment is in favour of a “person” (i.e. a company in this context), namely, Max Christmas Real Estate Pty Ltd.
2. Incorrect address & 3. Incorrect date of agent’s appointment
- [9]The remaining two alleged grounds of irregularity (i.e. the misdescription of the address of Apartment 17, Monaco in paragraph 16 of the plaintiff’s statement of claim, and the incorrect date of the agency agreement in respect of Penthouse 2, referred to in paragraph 23 of the plaintiff’s statement of claim) do not, in my view, constitute an irregularity which amounts to a failure to strictly comply with the rules relating to the obtaining of judgment in default[6].
- [10]Accordingly, in my view, the applicant/defendant has failed to persuade the Court that the judgment was irregularly obtained. It is therefore necessary to examine the applicant/respondent’s submissions in respect of setting aside a regularly obtained judgment.
SETTING ASIDE REGULARLY OBTAINED JUDGMENT
- [11]The principles applicable to an application to set aside a regularly obtained judgment are set out above in paragraph [3][7].
SATISFACTORY EXPLANATION FOR NOT FILING DEFENCE
- [12]The starting point for the applicant/defendant in seeking to set aside a regularly obtained judgment, is the requirement that the defendant “must demonstrate ‘a very compelling reason’ for the failure to appear”[8]. The applicant/defendant addresses the reasons for the failure to file his defence within the relevant time limit at paragraph 2 of his affidavit sworn 25 August 2005. In summary, the applicant/defendant claims that he incorrectly recalled the date of service of the claim[9] and further, that the combination of work pressure, negotiations with the plaintiff’s solicitors and the difficulties of dealing with the matter long distance from his residence in Tokyo, all contributed to his failure to file a notice of defence within the relevant time frame.
- [13]It is clear, in my view, that the applicant/defendant was a sophisticated and intelligent person with expertise in real estate and law[10] who was, at one stage, a solicitor admitted in New South Wales[11]. The applicant/defendant’s own material indicates that as at 11 August 2005 he was making enquiries with the respondent/plaintiff’s solicitors about the amount of interest and costs so that he could consider his position[12], was informed on the same day (11 August 2005) that the claim and statement of claim had been served on 13 July 2005[13] and, prior to that, on 3 August 2005, was seeking to make direct contact with the respondent/plaintiff company in order to reach settlement[14].
- [14]In all of the circumstances I do not consider that the applicant/defendant has provided a “very compelling reason for the failure to appear” and file a defence. It is clear that the respondent/plaintiff was entitled to and did, in fact, enter judgment on 12 August 2005 in default of the entry of a notice of intention to defend. On this basis alone, in my view, the applicant/defendant’s application to set aside judgment must fail.
DELAY
- [15]I accept that the application by the applicant/defendant seeking to set aside the default judgment, which was filed on 29 August 2005, could not be characterised as undue delay in the circumstances. In any event, the respondent/plaintiff accepts that there is no issue of delay in this matter.
PRIMA FACIE DEFENCE ON THE MERITS
- [16]Although, in my view, there has been a failure by the applicant/defendant to give a satisfactory explanation for the failure to file a notice of intention to defence within the applicable time frame, I will deal briefly with the issue of whether the defendant has raised a prima facie defence on the merits. As counsel for the respondent/plaintiff correctly points out, the defence of the defendant which he seeks leave to file if the judgment is set aside[15] is not particularised, nor are the purported merits of the applicant/defendant’s defence sworn to, in order to provide an explanation of the factual basis for his defence[16].
- [17]In any event, I do not consider that any of the matters raised by the applicant/defendant are meritorious and provide a prima facie defence on the merits. In respect of each of the proposed grounds of defence I find as follows:
ABN number misdescription
- (1)I have dealt with this matter previously in respect of the issue of the irregular entry of judgment[17] and I accept that this is simply a typographical misdescription of the ABN number and has no other validity as a defence;
Appointment as agent for purchase of property
- (2)In my view it is clear that the relevant PAMDA Form 22a[18] is intended to be an appointment for the sale of a residential dwelling at an anticipated price of $320,000. There is no merit to this defence;
Legal effect of rescission is that contract was not entered into
- (3)In my view, the rescission of each of the relevant contracts[19] do not have the effect that there was never a contract for sale for which the respondent/plaintiff was agent. There is no merit to this defence;
Plaintiff was not the effective cause of sale
- (4)It is, in my view, absolutely clear that the respondent/plaintiff was the “effective cause of the sale”, in respect of the first contract for each of the relevant items of real estate[20], and was also the “effective cause of sale” in respect of each of the second contracts in relation to the relevant items of real estate[21]. It is notable that each of the exhibits which contain the second contracts also contain agent details nominating “Max Christmas Real Estate Pty Ltd” as agent, but with those agency details crossed out (with appropriate initialling of the parties to the contract). In addition, with the exception of the contract in relation to Penthouse 2A[22], the relevant “second contracts” are all for the same price as the “first contracts”, and the difference in respect of the Penthouse 2A contract was conceded by the applicant/defendant to be “an interest factor”[23]. In short, the respondent/plaintiff was, in my view, clearly the “effective cause of sale” for each of the first and second contracts;
Appointment of Max Christmas Real Estate Pty Ltd not in accordance with Property Agents and Motor Dealers Act 2000 s 133
- (5)The relevant material before the Court[24] indicates that PAMDA Form 22a’s were signed for three of the four properties on or before the date of the contract of sale with the exception of the Penthouse 2A contract, which appears to contain a contract date of 14 May 2004 and a PAMDA Form 22a dated 17 May 2004. However, it appears clear to me that, in the circumstances of this case, that even if the relevant PAMDA Form 22a post-dated the date of the contract of sale, it still pre-dated the completion of the contract of sale. These matters do not, in my view, raise a meritorious defence;
Termination of appointment of Max Christmas Real Estate Pty Ltd
- (6)The respondent/defendant purported by documents dated 5 August 2004[25] and 9 August 2004[26] to terminate the appointment of Max Christmas Real Estate Pty Ltd as the respondent/defendant’s agent. However, I accept the submissions on behalf of the respondent/plaintiff that those notices of termination in those circumstances could not, given the previous written authorities held by the respondent/plaintiff, amount to a unilateral disentitlement of the respondent/plaintiff to commission in respect of the “second contract” sales[27]. There is no merit to this defence;
Appointments were validly terminated for breach of code of conduct
- (7)As the respondent/plaintiff correctly points out, none of the notices of termination of appointment[28] refer to any breach of the code of conduct. In any event, the alleged breaches asserted do not, in my view, constitute a meritorious defence;
Special Conditions of the Contract
- (8)I accept the submission of the respondent/plaintiff that, although the relevant “first contracts” were interdependent (special conditions 4 and 5 in each of the relevant first contracts), and those contracts were not completed, this did not affect the agent’s entitlement to commission when all four “second contracts” were completed and the sale of the relevant properties was successfully finalised. There is, in my view, no merit to this ground of defence;
Conclusion – Grounds of Defence
- (9)In conclusion, I do not consider the applicant/defendant has raised a prima facie defence on the merits in respect of any of the eight grounds of defence referred to above. Consequently, it is my clear opinion that there is no prima facie ground of defence by the applicant/defendant on the merits in respect of any of the grounds raised in the proposed notice of defence.
CONCLUSION
- [18]The applicant/defendant has failed to establish that the judgment was irregularly obtained. Given my finding that the judgment was regularly obtained, the applicant/defendant has failed to establish the “very compelling reason” required to excuse his failure to file a defence within time. The applicant/defendant’s proposed grounds of defence are all without merit.
ORDER
- [19]I dismiss the application to set aside judgment and (consequently) decline to order in respect of the matters set out in paragraphs 2-5 of the applicant/defendant’s application filed 29 August 2005.
- [20]I will hear the parties on costs.
Footnotes
[1] See Vosmaer v Spinx [1964] QWN 36; Champion v Fay [1983] 2 Qd R 416; Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85, 91
[2] See Civil Procedure Queensland – Uniform Civil Procedure Rules volume 1 Annotations to r 290.10 and see also Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142
[3] Including, for example, Exhibit O to the affidavit of Stephen John Hockley sworn 25 August 2005
[4]Corporations Act (Cth) 2001 s 153(1)
[5]Corporations Act (Cth) 2001 s 153(2)
[6]Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85, 91 and see also Champion v Fay [1983] 2 Qd R 416; Luka Brewery v Grundmann [1985] 2 Qd R 204, 209, 210
[7] See Aboyle Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142; National Mutual Life Association of Australasia Ltd v Oasis Development Pty Ltd [1983] 2 Qd R 441, 449 and Yankee Doodles Pty Ltd v Blendale Pty Ltd [1999] QSC 134
[8]Yankee Doodles Pty Ltd v Blendale Pty Ltd [1999] QSC 134 per Atkinson J at para 13
[9] He came to believe the relevant date was 17 July 2005, not 13 July 2005
[10] See, for example, Exhibit Y to affidavit of Stephen John Hockley sworn 25 August 2005
[11] See affidavit of Jeffrey Douglas Johnson sworn 14 November 2005, para 3, and see transcript p 7
[12] Exhibit H to the affidavit of Stephen John Hockley sworn 25 August 2005
[13] Exhibit E to the affidavit of Stephen John Hockley sworn ?13 July 2005
[14] Exhibit D to the affidavit of Stephen John Hockley sworn 25 August 2005
[15] Exhibit J to the affidavit of Stephen John Hockley sworn 25 August 2005
[16] See Saunders v Hammond [1965] QWN 39 and Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 at paras 14 & 16
[17] See paras [6]-[8] above
[18] Exhibit K to the affidavit of Stephen John Hockley sworn 25 August 2005
[19] Exhibits M, P, S and V to the affidavit of Stephen John Hockley sworn 25 August 2005
[20] Exhibits L, O, R and U to the affidavit of Stephen John Hockley sworn 25 August 2005
[21] Exhibits AA, BB and CC to the affidavit of Stephen John Hockley sworn 25 August 2005 and Exhibit DD to the affidavit of Stephen John Hockley sworn 27 October 2005
[22] Exhibit CC to the affidavit of Stephen John Hockley sworn 25 August 2005
[23] Transcript p 40
[24] Exhibits to the affidavits of Stephen John Hockley sworn 25 & 27 August 2005
[25] Exhibit W to the affidavit of Stephen John Hockley sworn 25 August 2005
[26] Exhibit X to the affidavit of Stephen John Hockley sworn 25 August 2005
[27] See Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571, 579-580. It should be noted that in the Rasmussen & Russo case the second contracts were only able to be entered into through the agency of a second real estate agent who had access to finance which was not available through the first real estate agent.
[28] Exhibits X and W to the affidavit of Stephen John Hockley sworn 25 August 2005