Truran v Peekhrst Pty Ltd
[2008] QDC 180
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Truran v Peekhrst Pty Ltd[2008] QDC 180
Truran v Peekhrst Pty Ltd[2008] QDC 180
[2008] QDC 180
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2407 of 2006
GUI ARNOLD TRURAN AND PHILIP ARTHUR STOREY | Plaintiffs |
and | |
PEEKHRST PTY LTD | Defendant |
BRISBANE
DATE 02/07/2008
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 374 - judgment against defendant where it failed to comply with an order for disclosure |
HIS HONOUR: This is an unusual proceeding. The Court has come to the end of its list for the day. Mr Whelan, the applicant's solicitor is not here. Apparently he was engaged to appear in another court. However, Mr Catchpoole as the solicitor on the record for the defendant company is here, suggesting, as an officer of the Court, that the matter can be dealt without waiting for the arrival of Mr Whelan about which there can't be any confidence that it will occur reasonably soon.
The basis of the application is rule 374 and the defendant's admitted failure to comply with an order made by Judge Kingham on the 29th of February 2008 for disclosure.
The Court record indicates that Mr Catchpoole appeared before her Honour, that's correct?
MR CATCHPOOLE: Yes, your Honour, by consent.
HIS HONOUR: Was Mr Whelan there too?
MR CATCHPOOLE: No, your Honour.
HIS HONOUR: That's, again, an oddity that Mr Whelan did not, although the order sheet shows that he had appeared on an earlier aspect of the matter before Judge Noud on the 20th of December 2007.
The claim is for declarations by the Court to confirm the plaintiffs' view that they terminated a contract to purchase a residential unit and a boat mooring from the defendant "off the plan". It also sought an injunction to restrain the calling-up of some $131,000 to stand as a deposit in the transaction, which was provided by way of a bank guarantee.
As events turned out, the guarantee was called up.
Mr Catchpoole indicates he's not in any position to defend the taking of that step.
In my view, it's a much stronger thing to use rule 374 to enter a judgment against a defendant, than it is to dismiss the claim of a plaintiff for non-compliance with a Court order.
The circumstances are different here in that, while not in a position to consent to the order, because he can't obtain instructions, Mr Catchpoole frankly indicates to the Court that there is nothing he can say against it.
I've identified the material on the Court file which is necessary and sufficient to support the relief sought in the application filed the 17th of June 2008 by the plaintiff.
It is for orders:
1. That the defence of the defendant be struck out and judgment be entered against the defendant.
2. That the defendant pay the plaintiffs' costs of and incidental to this application.
Ordinarily, it would be sufficient to indicate that an order is made in terms of paragraphs 1 and 2. However, the claim seeks a wide range of relief, some of it in the alternative.
It includes injunctive relief to restrain dealing with proceeds of any moneys received from the National Australia Bank. I think you concede that your client got those moneys?
MR CATCHPOOLE: Yes, your Honour, but I think, as to the injunctive relieve sought‑‑‑‑‑
HIS HONOUR: It's too late, isn't it?
MR CATCHPOOLE: It's too late‑‑‑‑‑
HIS HONOUR: Yes, that's right, well, that's what I'm saying, it's not appropriate in the circumstances to grant relief of that kind and still less, in my opinion, any order by the Court confirming that there's been a breach of the Trade Practices Act or any claim to relief under it, established.
So, the first paragraph in the order ought to have added to it: "in terms of paragraphs 1, 5 and 6 of the claim filed on the 17th of August 2006."
In addition, paragraph 2 of the order ought to have added to the words in the application the words "excluding the costs of today's appearance" in the circumstances, unless the amendment breaks any understanding you've got with Mr Whelan, is it?
MR CATCHPOOLE: No, your Honour, just so that I'm clear, I take your Honour's‑‑‑‑‑
HIS HONOUR: He's getting costs, but he's not going to get costs of appearing today because he didn’t.
MR CATCHPOOLE: I haven't discussed the matter with my friend.
HIS HONOUR: But‑‑‑‑‑
MR CATCHPOOLE: Mr Whelan's coming through the door, your Honour.
HIS HONOUR: Well, it's too late. We can tell him what's happened. So, Mr Whelan, I apologise for dealing with the matter in your absence up till now, but Mr Catchpoole and I worked our way through it and the result is that you get an order in terms of paragraph 1 of your application, but added to paragraph 1, "in terms of paragraphs 1, 5 and 6 of the claim", that's - 6 is your interest, 5 is a judgment for $131.000 and 1 is declaration that the contract came to an end.
So, it's just paragraph 1 of the application, plus the words, "In terms of paragraphs 1, 5 and 6 of the claim" and so far as paragraph 2 of the application is concerned, you get an order in terms of that but with the words added "excluding the costs of today's appearance."
So, you're going have your costs of preparing the application and affidavit, etc.
MR WHELAN: Thank you, your Honour.
HIS HONOUR: You're not wanting to complain about that?
MR CATCHPOOLE: No, your Honour, I'm not, so, that's fine.
HIS HONOUR: All right.