Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Peldan & Ors v Jones[2008] QDC 111

[2008] QDC 111

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3731 of 2006

MICHAEL RICHARD PELDAN

and

First Plaintiff

MORGAN GERARD LANE 

and

HI-WAY TRUCK REPAIRS PTY LTD

(IN LIQUIDATION)

and

Second Plaintiff

 

 

 

Third Plaintiff

CHRISTOPHER JONES

Defendant

BRISBANE 

DATE 01/04/2008

ORDER

CATCHWORDS:

Uniform Civil Procedure Rules r 225 - court declines to enter judgment in a claim for insolvent trading where defendant company director has not made disclosure requested by plaintiffs - order for disclosure made, permitting plaintiffs to proceed as a default in the event of non-compliance

HIS HONOUR: This is an application seeking judgment against the defendant under rule 225 for failure to make disclosure. While the rule in terms authorises a judgment against a defendant who defaults in that regard, in my view, it is far too strong a thing to contemplate that outcome on this occasion. Generally one would expect a court to be much more inclined to strike out the claim of a defaulting plaintiff than to enter a judgment which might be totally inappropriate against a defaulting defendant, particularly one such as Mr Jones who now appears to be looking after his own interests, his former solicitors having been given leave to withdraw.

The nature of the claim has some relevance here. It is a claim against a sole director of a company now in liquidation for insolvent trading. Of course, all manner of issues may have to be gone into if perfect justice or anything approaching it is to be achieved in that context.

The structure of the claim is to identify a whole series of invoices the insolvent company failed to meet. Whether or not there was truly insolvent trading may be resolved differently in respect of particular invoices arising at their own particular dates.

The claim is something in excess of $84,000.

...

HIS HONOUR: Notwithstanding the foregoing, under the philosophy of modern litigation enshrined in the UCPR the plaintiffs, who include Hi-Way Truck Repairs Pty Ltd, although it is identified as a defendant in some file documents, are entitled to expect the defendant to run through the various hoops which the UCPR mandates.

In the circumstances I am prepared to make what is called a guillotine order so that dire consequences for Mr Jones may well eventuate if he fails to make disclosure.

He has not appeared today when called although service on him by post to his address noted in his notice of intention to defend has been undertaken. Given the nature of the claim there must be some uncertainty as to just what judgment in default would be appropriate. This is not the occasion for going into that.

The plaintiffs, in my view, should be put in a position of being able to proceed as if there were no notice of intention to defend and defence on the file. It is going to be a matter of persuading the Registrar to enter a default judgment. It may be one of those situations where the proceeding has to be set down for hearing, but I am not making those comments to render the plaintiffs' task more difficult.

These are the orders:

  1. order that the defendant make disclosure by delivering a list of documents no later than 14 days from the date of service of a copy of this order on him by posting prepaid post to his address in his notice of intention to defend or such other address for service as he may notify by an appropriate document filed in the court.
  2. order that in default of timely compliance with the foregoing by the defendant, unless some other order is made by the court, the notice of intention to defend and defence be struck out and the plaintiffs be entitled to proceed as if the defendant had not filed those documents.
  3. order that the defendants pay the plaintiffs' costs of the application to be assessed;
  4. liberty to apply.
Close

Editorial Notes

  • Published Case Name:

    Peldan & Ors v Jones

  • Shortened Case Name:

    Peldan & Ors v Jones

  • MNC:

    [2008] QDC 111

  • Court:

    QDC

  • Judge(s):

    Robin QC DCJ

  • Date:

    01 Apr 2008

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Interactco Limited v GDC Global Digital Cash Pty Ltd [2009] QDC 2571 citation
Pearce v Mango Hill Skirmish [2010] QDC 3261 citation
Queensland Building Services Authority v Doyle [2012] QDC 601 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.