Express Finance Solutions Pty Ltd v Richards
[2011] QDC 192
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- Express Finance Solutions Pty Ltd v Richards[2011] QDC 192
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Express Finance Solutions Pty Ltd v Richards[2011] QDC 192
Express Finance Solutions Pty Ltd v Richards[2011] QDC 192
[2011] QDC 192 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 2345 of 2010 | |
EXPRESS FINANCE SOLUTIONS PTY LTD | Plaintiff |
and | |
EARL NORMAN RICHARDS | Defendant |
and | |
SANDRA ROSE RICHARDS | Defendant |
BRISBANE | |
DATE 12/08/2011 | |
DAY 1 | |
ORDER |
CATCHWORDS | Uniform Civil Procedure Rules r 105, r 106, r 290 Default judgement set aside "ex debito justitiae" - defendants swear they were never served and had sold and vacated relevant premises where claim and statement of claim were left by the time of the alleged service (by a person now deceased) |
HIS HONOUR: The court makes an order in terms of the initialled draft under rule 290 and sets aside default judgment entered in the Registry on the plaintiff's second attempt in that regard on the 12th of November 2010.
There are affidavits of the two defendants swearing that service never occurred of the claim and statement of claim. These complaints are corroborated by the fact asserted in the affidavits, assuming it to be one, that they had sold the relevant premises and vacated them some time before it's asserted that service occurred by leaving of the documents at the premises.
The plaintiff is in some difficulties because its principal, Mr Grant, who claimed to have effected service, has recently died. For what it's worth, he appears to have been a bankrupt who ought not to have been participating in commerce through the plaintiff as occurred. The plaintiff doesn't appear today when called although served with the application.
The judgment should be set aside ex debito justitiae. It's interesting to note that on the 21st of September 2010 when default judgment was refused the Registrar noted "The two defendants (if they were in the house) were behind closed doors. The claim and statement of claim were not served in accordance with rules 104 to 106 (i.e the documents were not handed to each defendant personally nor were the documents put down in the presence of each defendant with the defendant being told what the documents were)." It's not entirely clear how the circumstances had changed by the day when judgment was entered by a different Deputy Registrar.
Order as per initialled draft.