Tomalpin Holdings Pty Ltd v Hearney
[2006] QDC 44
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- Unreported Judgment
- Tomalpin Holdings Pty Ltd v Hearney[2006] QDC 44
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Tomalpin Holdings Pty Ltd v Hearney[2006] QDC 44
Tomalpin Holdings Pty Ltd v Hearney[2006] QDC 44
DISTRICT COURT | No BD1834 of 2003 |
CIVIL JURISDICTION
JUDGE McGILL SC
TOMALPIN HOLDINGS PTY LTD (ACN 055 957 628) | Plaintiff |
and
FRANK JOSEPH HEARNEY | Defendant |
and
OMEGA AVIATION PTY LTD (ACN 097 997 512) (Subject to Deed of Company Arrangement) | First Defendant by Counterclaim |
and
JETCARE PTY LTD (ACN 010 378 006) | Second Defendant by Counterclaim |
and
BRIAN PATRICK FRASER | Third Defendant by Counterclaim |
BRISBANE
..DATE 14/02/2006
JUDGMENT
HIS HONOUR: By this action the plaintiff claims an amount in United States dollars and an amount in Australian dollars, both payable under a deed between the plaintiff and the first defendant by counterclaim. The action was brought against the defendant as the guarantor of the obligations of the first defendant by counterclaim under that deed. The amount payable under that deed was, by the deed, an amount of $US2,000 per day from 14 September 2002 until the date of payment of an amount payable under another agreement. That amount was paid subsequently so that the amount payable under the deed came to be $US52,000. The deed also provided for payment of some legal fees the plaintiff had incurred, and those legal fees were in an amount of $5,006.52. Those legal fees were incurred in Australia and were in Australian dollars. The plaintiff also claimed interest at a rate of nine per cent on those amounts.
...
HIS HONOUR: Interest is also claimed by statute at nine per cent from the 1st of January 2003 until the date of payment. That amount, in the case of the claim in United State dollars, is an amount of $14,629.80 so that the total amount for which judgment is sought now in United States dollars is $66,629.80. Interest on the legal costs has accrued to date in the sum of $1,408.55.
The defendant filed a notice of intention to defend and defence, and for a time was actively defending the action but has not appeared when the action was called on. That is, in the circumstances, unsurprising. In July last year the defendant's solicitors were given leave to withdraw and subsequently the defendant personally has not taken any active role. In October last year an order was made dispensing with the defendant's signature on the request for trial date and in December last year the action was set down for callover at which the defendant did not attend, so the defendant's absence today does not come as a surprise.
In December last year a notice to admit facts and a notice to admit documents were sent to the defendant's last known address and no response has been forthcoming so he is deemed to have admitted the facts.
The combination of those facts, the facts admitted on the pleadings and the contents of an affidavit of Mr Fraser read and filed on behalf of the plaintiff is sufficient to satisfy an entitlement to a judgment pursuant to Rule 476(1).
The appropriate judgment is, it seems to me, a judgment of the amount owing in United States dollars or the equivalent amount in Australian dollars at the time payment is made (see ANZ Banking Group Ltd -v- Cawood [1987] 1 QDR 131). Accordingly, I give judgment that the defendant pay the plaintiff United States $66,629.80 or the equivalent amount in Australian dollars at the time payment is made, and $6,415.07.
I will also order that the defendant pay the plaintiff's costs of and incidental to the action to be assessed. The plaintiff sent the defendant a formal offer to settle in September 2003 for an amount which was now clearly much less than the amount of the judgment that I have just given and, accordingly, on the face of it pursuant to Rule 360, the plaintiff is entitled to its costs on an indemnity basis and there is no reason shown why that order should be departed from. So I will order that the costs be assessed on the indemnity basis.
The effect of Rule 476 in circumstances where the defendant has a counterclaim and the defendant does not appear, in my opinion, is that the plaintiff is entitled to judgment on the counterclaim. The counterclaim is also brought against a company, Omega Aviation Pty Ltd. That company has appeared. That company had previously filed an answer to the counterclaim by which it consented to the orders sort in the counterclaim by the defendant except as to costs. The orders sought in the amended defence and counterclaim filed 23 February 2003 are simply a number of declarations which are declarations in relation to the legal position, or perhaps the factual position, as between the plaintiff and the defendant.
It does not seek any specific relief from the first defendant and in those circumstances, given that the counterclaim is appropriately dismissed as against the plaintiff, I do not think it is appropriate to give judgment on the counterclaim against the first defendant in the terms sought even though the first defendant consents to it. Indeed, there is some authority for the proposition that a Court should not make a declaration in circumstances where there is no dispute between the parties as to the correctness of what is being declared.
The position is, therefore, that as between the defendant and the first defendant by counterclaim there is no dispute as to the correctness of that proposition and, therefore, on ordinary principles, no such declaration should be made.
The first defendant by counterclaim does seek an order that its costs be paid by the counterclaiming defendant. The ordinary consequence of the failure of the defendant to appear where there is a counterclaim would be that the counterclaim would be dismissed and there will be an order for costs against the counterclaiming defendant.
So I will order that the defendant pay the costs of the first defendant by counterclaim of the counterclaim to be assessed.
...
HIS HONOUR: Yes, it occurs to me I did not specifically refer to the costs of the counterclaim and the plaintiff's costs to the action against the defendant are to include the costs of the counterclaim. They would also be payable and also to be assessed on an indemnity basis.
...
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