MSI (Holdings) Pty Ltd v Mainstreet International Group Limited
[2012] QDC 85
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- MSI (Holdings) Pty Ltd v Mainstreet International Group Limited[2012] QDC 85
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MSI (Holdings) Pty Ltd v Mainstreet International Group Limited[2012] QDC 85
MSI (Holdings) Pty Ltd v Mainstreet International Group Limited[2012] QDC 85
[2012] QDC 85
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4986 of 2011
MSI (HOLDINGS) PTY LTD | Plaintiff |
and | |
MAINSTREET INTERNATIONAL GROUP LIMITED | Defendant |
BRISBANE
DATE 17/04/2012
ORDER
CATCHWORDS | Application to set aside default judgement upon a claim based on financial records to recover alleged loans between companies in a group - defendant seeking adjournment for a period of months, plaintiff seeking a short adjournment to permit it to deal with the defendant's undetailed challenge to the particularised loans alleged by producing additional records supporting each loan - the shorter adjournment granted - undesirable to have a challenged judgement under a cloud for months |
HIS HONOUR: I will adjourn the defendant's application to set aside judgment entered on 13 January 2012 to 26 April 2012.
It is a confusing situation in which the defendant does not wish to proceed with its application today on the basis that there is also pending in the Supreme Court an application to set aside a winding-up notice based on the same debt which is yet to be served.
The defendant appears not anxious to get that matter to a hearing, perhaps because the view is taken that the standing District Court judgment ought to be dealt with first. That approach makes sense but the defendant is not anxious to have its application to set aside judgment dealt with today.
The notion of adjourning it has been around for a few days, being based originally on a contention that the defendant's deponent Mr Schipper for health reasons, would not be available for cross-examination. As it happens, the plaintiff is not interested in cross-examining him. Mr Hannan, who represented the defendant/applicant of which he is a director, then changed tack to say that he wanted Mr Schipper in court to give evidence explaining the state of accounts between the parties. If he is going to do that, it ought to be done not in evidence from the witness-box, unless he is required for cross-examination, but in an affidavit which the plaintiff/respondent is given adequate time to consider.
I have endeavoured to make it clear to Mr Hannan that in an application of the present kind it is likely to be incumbent on him to produce sworn evidence which shows an arguable defence, and that means condescending to deal with particular facts rather than presenting broad assertions along the lines that "there is and remains a genuine dispute between the defendant company and the plaintiff company" as deposed by Mr Hannan in his affidavit filed 11 April 2012.
The statement of claim does condescend upon particulars, setting out item by item amounts which it says constitute loans from the plaintiff to the defendant which the defendant is now called on to repay, albeit these loans were informal in nature. They were not made pursuant to any formal "loan agreement" of the kind that Mr Hannan intimated existed in other contexts within his group of companies, which appear to have overlapping directorships; there are more of them than the present parties.
Analysis of the National Australia Bank statements shows that it is only for some of the transactions mentioned in the statement of claim that a transfer of funds from the plaintiff the defendant is expressly documented. The defendant appears to be identified in the bank statements as "MSIGL" and it may not be implicated in some of the transactions recorded in the bank statement which are relied on in the statement of claim. For example, it may not be implicated in transfers of funds to "Mainstreet".
There are other transactions relied on in respect of which the bank statement indicates yet other transferees, for example, on 22 July 2010, $40,035 which appears merely as "withdrawal", $6,345 on the following day which appears as an Internet transfer to "MSI HLDS Sunstate" and, more intriguingly, on 2 August 2010, $1,000 made available by EFTPOS the previous day to Swim Art Cleveland.
Mr Gardiner, for the plaintiff, responded to the court's exercise of examining the items of the statement of claim in this detail by seeking a short adjournment so that he could seek further instructions. He is hopeful of obtaining evidence that will assure the court, if necessary, that the components of the judgment amount are properly owing. Of necessity, those now in charge of the plaintiff company are without direct knowledge of relevant transactions; they base the claim on the records of the plaintiff that have come into their hands.
Of the now competing applications for adjournment, the one which should be favoured is Mr Gardiner's for a short adjournment rather than Mr Hannan's which is for several months. It seems to me plainly undesirable to have in place a judgment of the court whose status is under a cloud because the application has been adjourned for such a lengthy period.
In the circumstances, the defendant's application to set aside the default judgment entered on 13 January 2012 should be adjourned to 26 April 2012.
Mr Hannan had sought to bring before the court today another application notified to the plaintiff's solicitors, if it has been notified at all, no sooner than yesterday evening. It seeks their removal as lawyers with a role in the proceeding on the basis of a conflict of interest. That is not the kind of application that ought to be dealt with on inadequate notice. The court returned the documents that Mr Hannan had proffered to him to enable him to file them in the ordinary way. It may be convenient for that application to be brought on on 26 April 2012, but that is a matter for Mr Hannan.
It ought to be noted that he seeks to have the default judgment set aside on the basis that the claim and statement of claim were never served. The mode of service adopted was by ordinary post to the company's registered office, apparently a firm of accountants. On the evidence of Ms Ralph posting of that Court process occurred on 8 December 2012 [sic], so far as her firm's records show. Taking the year to be 2011, that would indicate that service was effective for the purpose of supporting a judgment and default notice of intention to defend.
There is not evidence before the court at this stage of the sympathetic kind that persuaded Judge Shanahan in similar circumstances to let in to defend a defendant which had not been promptly informed of the service by post of a claim and statement of claim at its registered office in Unique Product Marketing Pty Ltd v. Bortek Sales Pty Ltd [2000] QDC 314.
...
HIS HONOUR: Order that any further affidavit material that the defendant wishes to rely on be served on the plaintiff's solicitors by the close of business on 20 April 2012.
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HIS HONOUR: Costs reserved.