Hunter v Kitagawa
[2010] QDC 430
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- Hunter v Kitagawa[2010] QDC 430
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Hunter v Kitagawa[2010] QDC 430
Hunter v Kitagawa[2010] QDC 430
[2010] QDC 430
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3136 of 2008
ALLEN ROBERT HUNTER | Plaintiff |
and | |
TAKANAO KITAGAWA | Defendant |
BRISBANE
DATE 26/10/2010
ORDER
CATCHWORDS | Uniform Civil Procedure Rules, r 509 Assessment of damages pursuant to judgment entered by the Registrar in favour of a plaintiff vendor of real property - defendant purchaser did not appear - court concerned that the damages claimed above loss on resale, namely the wasted costs of the sale to the defendant may not have been strictly recoverable, but satisfied the plaintiff could successfully have claimed more than the judgment amount |
HIS HONOUR: I certify that the plaintiff's damages have been assessed at $99,880.92, plus an interest component to date at the Supreme Court Act rate of a further $22,169.70.
This is an assessment of damages pursuant to a default judgment granted by the Deputy Registrar on 15 July 2010. Rule 509 requires that unless the court directs otherwise, the assessment must be conducted as nearly as possible in the same way as a trial. It also provides that when the hearing date is fixed, the plaintiff must serve notice of it on the defendant.
Mr Hatcher has sworn an affidavit deposing to service by post on the defendant at the address where the process server, Matthew Kenneth Williams, whose affidavit of service is a document on the court file, served the claim and statement of claim on 7 April 2010. The affidavit identifies the relevant address as "the defendant's residential address". There is no appearance for the defendant when called today, hence no challenge to the plaintiff’s evidence.
The relevant contractual documents are placed before the court as exhibits to an affidavit of the plaintiff, an appropriate way of doing it in the circumstances. The defendant was the successful bidder for a property the plaintiff was selling at an auction, having bid $1.09 million. He was obliged to pay a 10 percent deposit on the signing of the contract on 19 July 2008 but failed to pay it.
Within the two year period contemplated by a provision in the contract, Mr Hunter sold the property, successfully this time for $1 million. That is a standard REIQ sixth edition form revealing the involvement of a well known agent. I observed this in the course of perusal of the papers.
Even with the panoply of rights in the contract signed at auction considered, I was somewhat concerned at the claim being for loss on resale, which one would expect and, in addition, costs of the auction thrown away and legal costs associated with the aborted sale to the defendant. It seemed to me that the auction costs, in particular, would have been incurred anyway, but that it would comport with ordinary notions of damages to claim the costs of the resale.
On the assumption confirmed by Mr Hatcher that the REIQ contract would lead to commission to the agent at 5 percent on the first $18,000 of the purchase price, two and a half percent thereafter, the commission would be $25,450, which is well in excess of what is currently sought over and above deficiency in the resale price.
What is currently sought appears from the claim and statement of claim. It is significant that those documents would indicate to the defendant, who is treated as having elected not to appear, what his maximum exposure in the proceeding was.
The claim on this basis is a modest one, which is a favourable circumstance from the defendant's point of view, notwithstanding my misgivings about the legal theories on which it is based. It is true that commission would have been payable had the sale to the defendant been completed. The “escape” the defendant has had, in the sense he gets off lightly, really depends on the basic claim having been for loss or resale of $90,000; the plaintiff had a good claim, it would seem, for $109,000, the amount of the deposit should have been paid.
It is appropriate to assess damages in the way Mr Hatcher asks for. As indicated already, I certify that the plaintiff's damages have been assessed at $99,880.92, plus an interest component to date at the Supreme Court Act rate of a further $22,169.70.