Crayvine Pty Ltd v Dalison Pty Ltd
[2009] QDC 253
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- Unreported Judgment
- Crayvine Pty Ltd v Dalison Pty Ltd[2009] QDC 253
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Crayvine Pty Ltd v Dalison Pty Ltd[2009] QDC 253
Crayvine Pty Ltd v Dalison Pty Ltd[2009] QDC 253
[2009] QDC 253
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 868 of 2009
CRAYVINE PTY LTD (ACN 011 018 652) | Plaintiff |
and | |
DALISON PTY LTD (ACN 010 365 554) and GAVIN JOHN WRIGHT | Defendant
Defendant |
BRISBANE
DATE 26/06/2009
JUDGMENT
CATCHWORDS: District Court of Queensland Act 1967 s 68, s 69 – Uniform Civil Procedure rules r 115, r 283, r 288
Whether court had jurisdiction to declare existence of a caveatable interest – defendant guarantor charged “all property both equitable and legal” and authorised execution of consent to registration of a caveat over any real property – default judgment conditioned upon proof that defendant’s solicitors who agreed to accept service had received relevant documents
HIS HONOUR: This is Crayvine –v– Dalison Pty Limited, 868 of 2009. There are no appearances. It's an application which the plaintiff, who filed it on the 2nd of May 2009, requested be dealt with without an oral hearing. The rules and practice for such an application to be so dealt with have been complied with.
I ask myself whether the solicitors appreciated the complexity of the application. It's complex, in my view, in any event. Although, in substance, the application is going to be acceded to, that outcome occurs only after a reasonable amount of research which the Court has had to undertake on its own initiative to satisfy itself in respect of aspects which might well have been covered in the written submission which was supplied with the application. It is brought ex parte and seeks judgment in default of the filing of a notice of intention to defend by the defendants.
The relevant rule so far as the first defendant is concerned is Rule 283, the principal relief sought being a money judgment for $44,697.30, money due and owing for goods and services supplied. Interest and costs are sought as well. The relevant rule so far as the second defendant is concerned is Rule 288.
The relief sought against the second defendant, who was guarantor of the first defendant's obligations to the plaintiff, is: "a declaration that the plaintiff as caveator has a caveatable interest in the property as claimed in caveat 712202032 lodged by the plaintiff and registered over the property." That caveat does not appear anywhere in the material before me, though the lodging of it is pleaded in the statement of claim. Nor is there any title search before me, although the second defendant's half ownership with another person, who would appear to be his partner, as tenant in common, is pleaded.
I think the Court ought to take some care to ensure that if relief is granted, nothing is done inadvertently which might affect the rights of non-parties. So far as the matter of title is concerned, the requirement for making the order is that the property be registered in the second defendant's name. Particularly given that this application is ex parte, the Court has to take care that proper service of the claim and statement of claim was effected on the defendants.
So far as the affidavit of Ekta Dhall goes, the second defendant was served by posting to its registered office. So far as the second defendant is concerned, the affidavit exhibits a solicitor's letter to the deponent's firm, referring to Gavin Wright and Laura Charmaine Wright (she being alleged by the statement of claim to be a tenant in common with respect to the property) and to the plaintiff, the letter helpfully concludes:
"We confirm that we hold instructions to accept service on behalf of our clients."
That's done against a background of an introductory paragraph advising that "settlement" of lot 18 on SP194033 "will not proceed today, 27 March 2009". That real property description coincides with the one in the statement of claim. The sequel to the letter of 27 March 2009 from Neumann & Turnour is a letter of 30th of March 2009 from the plaintiff's solicitors to Neumann & Turnour referring to the earlier letter and enclosing "by way of service, a claim and statement of claim".
The letter goes on:
"Please endorse and date the claim as well as provide our office with a copy of same by return facsimile."
The material before the Court today is totally silent as to any response of the kind which Rule 115(2) requires. I find it difficult to glean from that material that service on Neumann & Turnour by post has been agreed to. There's no sign of the requested procedure for confirming receipt of the posted documents having been carried out by Neumann & Turnour.
I am prepared to make the assumption that things have been done regularly. If there hasn't been proper service, then any defendant affected will be able to get a judgment against it or him set aside for the asking. I think it's appropriate for the Court to be cautious and to make the granting of any judgment, or the entry of any judgment pursuant to the orders sought, contingent upon proof of proper service on the second defendant.
The issues of a legal nature which concern me relate to the Court's jurisdiction to make orders about caveats and separately whether there is a caveatable interest. The guarantee document said to give rise to it is not in evidence before the Court. Once again, the Court has to go on what appears in the statement of claim, which is an assertion that clause 6 of the guarantee provides, and I quote from paragraph 7(d) of the pleading:
"The guarantor [the Second Defendant] hereby charges all property, both equitable and legal, of the guarantor in respect of any monies that may hereinafter be owing to Metal Fascia Services [the Plaintiff] under this guarantee by the guarantor or otherwise and hereby authorise Metal Fascia Services [the Plaintiff] or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the guarantor at any time."
It can hardly be said to be a matter of common understanding in the community or even among lawyers, in my view, that a security over specific real estate can be effectively granted by a general provision of that kind which makes no specific reference to property so that one may reasonably postulate that the parties gave no thought to whether there might be a security interest created in that particular piece of property.
As it happens, I have had some experience over the years with charges of this kind. In the short time available today to look into the matter, it's been easier to locate case authority accepting the possibility of such a security rather than locate anything in the legal texts which I was able to get easy access to. It's enough, in my view, to support the proposition that the charge might be good, which is enough in this situation, to refer to Thomas J's judgment in Clark -v- Raymor (Brisbane) Pty Limited (No. 2) [1982] QdR 790 at 794-95.
So far as the jurisdiction of the Court is concerned, it is not immediately obvious that the jurisdiction of this Court, described in section 68 of the District Court of Queensland Act 1967, includes jurisdiction to make orders about caveats.
I have taken the view that section 69, which confers a wide ancillary jurisdiction on the District Court where there is a section 68 claim properly before the Court, empowers this Court to make orders that otherwise only the Supreme Court could make, and, in particular, orders about caveats. See, for example - and this was not the first instance, but I have been unable to locate others - Ball-v-Pacimar Trading Pty Ltd [2004] QDC 566, and, more recently, Bloomer Construction (Queensland) Pty Ltd-v-Strathpine Lodge Pty Ltd, 1759 of 2007 and 362 of 2008, 3rd of April 2008, which I recall was a consent order.
Another Judge of the Court took a different view of the effect of section 69 in Simpson v. Simpson [2006] QDC 083, although, in the result, making an order for removal of a caveat on a counterclaim on the basis that the plaintiff caveator had failed to act within the time limited by section 86 of the Act to seek to have the counterclaim transferred to the Supreme Court. In that event the section was given its literal effect of conferring on the District Court jurisdiction to entertain the counterclaim which it would not otherwise have had.
There is a monetary claim, albeit against another party, which founds this Court's jurisdiction for purposes of section 68 taking a generous view of the jurisdictional issue, and I am prepared to treat as made possible by section 69.
I have determined in the interests of efficiency to resolve this matter in the way indicated, which leads to the making of an order as per an altered form of the proffered draft which I have initialled. It provides as follows.
THE ORDER OF THE COURT IS THAT:
"Subject of filing of an affidavit establishing receipt by Neumann & Turnour, solicitors of the claim and statement of claim by way of service on the second defendant before the filing of the plaintiffs' application,
1. Pursuant to rule 288 of the Uniform Civil Procedure Rules 1999 judgment by default be awarded in favour of the plaintiff.
2. That the judgment by default include:
(a) a declaration that the plaintiff as caveator has a caveatable interest in the property as claimed in caveat number 712202032 lodged by the plaintiff and registered over that property registered in the second defendant's name;
(b) that the first and second defendant pay $34,697.30 as money due and owing to the plaintiff;
(c) that the judgment by default includes costs fixed to the amount of $3029.16;
(d) in that the judgment by default include that interest be payable pursuant to section 47 Supreme Court act 1995."
There has also been supplied to the Court a judgment in a more compact form, which I have not initialled, apprehending that the applicant's idea is that the Registrar will sign that once provided with the order I have initialled. The alternative of provisions about interest which I adopted is the one relying on section 47 of the Supreme Court act 1995, rather than the contractual rate as pleaded in the statement of claim.
So far as costs are concerned, the statement of claim sets out the components in a notice under rule 150(3) in this way:
"The plaintiff claims:
| $34,697.30 | for claim; |
| $2,503.20 | for interest to 30 March 2009 and at the daily rate of $17.11 from that date until the date of judgment. |
| $555.00 | for professional costs of claim and this statement of claim; |
| $1,185.66 | Legal Costs incurred to date; |
| $935.50 | for filing fee of this claim and statement of claim; |
| $17.00 | for service of summons fee on First Defendant; |
| $37.50 | for service of summons fee on Second Defendant; and |
| $38.50 | for search fees. |
| $39,969.66 | Total |
The proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $260.00, costs of entering judgment in default."
The submissions in support of the application filed on 22 June 2009 add in the $260 for entering judgment in default, and that amount is foreshadowed as additional costs which would be sought as costs of entering judgment in default in the rule 150(3) notice. It seems appropriate to me to allow those costs in the absence of any challenge. The defendants, assuming them to have been served, have been given proper notice of claims in that regard. Although, this matter has involved a good deal of work to the Court maybe the defendants ought to count themselves fortunate that dealing with the matter on the papers has limited their exposure to costs.
There will be an order in terms of the initialled draft, as indicated.
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