Queensland Building Services Authority v Moore
[2013] QDC 92
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- Queensland Building Services Authority v Moore[2013] QDC 92
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Queensland Building Services Authority v Moore[2013] QDC 92
Queensland Building Services Authority v Moore[2013] QDC 92
[2013] QDC 92
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 376 of 2005
QUEENSLAND BUILDING SERVICES AUTHORITY | Plaintiff |
and | |
CHRISTOPHER JOHN MOORE | Defendant |
BRISBANE
DATE 08/04/2013
ORDER
CATCHWORDS | Uniform Civil Procedure Rules - R 799 |
HIS HONOUR: This is an application pursuant to rule 799 which the plaintiff proposes be dealt with without an oral hearing. It has not been served but the rule requires service on the judgment or enforcement debtor only if the court requires it. I am not inclined to do that.
The traditional situation in respect of a judgment has been that a limitation period of 12 years for a proceeding on a judgment applies under the Limitation of Actions Act. That means the plaintiff would be in time to bring a proceeding based on the judgment dated 21 March 2005. It was a judgment entered in the Registry on the ground that the defendant had not filed a notice of intention to defend.
At that date the judgment amount was $305,734.86 which included $85,828.70 for interest. The claim filed on 4 February 2005 was for $219,906.16 and interest.
The judgment amount now, thanks to interest accruing, would be $551,830.48.
The plaintiff's problem has been that the defendant sued as a guarantor of moneys due to the plaintiff by his building company, Civcon (Project Management) Pty Ltd under the Queensland Building Services Authority Act 1991.
The statement of claim sets out that the plaintiff had to make payments under statutory insurance policies in relation to the failure of the company to complete contracts and its performance of building work in a defective way.
The plaintiff has not been inactive in pursuing remedies. It caused a first bankruptcy notice to be issued in July 2008 which was served in January 2009.
It was determined that a creditor's petition could not be issued based on that bankruptcy notice because the plaintiff had managed to serve it within six months of the date of issue and also because the interest calculations were defective.
A second bankruptcy notice was issued on or about 25 March 2009, the amount claimed there being $421,781.
The dates in relation to the first bankruptcy were a date of issue of 4 July and service on 14 January 2009, narrowly outside the six months allowed.
Notwithstanding multiple attempts by process servers to serve the second bankruptcy notice as deposed to in Mr Patane's affidavit, it was not possible to effect service.
The affidavit suggests the defendant has been attempting to avoid service. He is also spending much of his time in Western Australia.
An extension of time was obtained for serving the second bankruptcy notice but attempts at service in Western Australia failed. The defendant seems to have a propensity to change his address.
He does, according to Mr Patane's searches, have real property in Queensland and is still on the electoral roll in this State.
The Insolvency and Trustee Service Australia in May 2011 declined a request for extension of time to serve the second bankruptcy notice which had been made the month before.
The evidence before the court indicates that at no time has the plaintiff abandoned its desire to have its judgment satisfied, that there has never been any arrangement or understanding with the judgment debtor inconsistent with having the judgment enforced, that no payment in reduction of the judgment debt or interest has been forthcoming.
Those matters are relevant under rule 799 which, consistently with the general approach of the UCPR that things ought to be done sooner rather than later, limits the time for which enforcement proceedings may be brought without leave of the court which made a money order.
There has been no change here in the enforcement creditor or the enforcement debtor in terms of the rule. The reasons for delay are explained as subrule (4)(b) requires them to be. The applicant/plaintiff, in my view, is entitled to enforce its judgment.
The authorities referred to in the written submissions filed on 3 April in support of the application include Boden v. Boden [2009] QDC 194 and Robertson v. Moran [2010] QDC 221.
The circumstances were unusual in the former case. The plaintiff's reason for failing to enforce her judgment earlier was that the defendant was her son and that she had only recently, and after the passage of six years, come to the conclusion that he would do nothing voluntarily towards satisfying the judgment which he had, in fact, consented to.
In the latter case, the debt was for criminal compensation and the respondent had made some payments. To an extent, indulgences had been granted in deference to the debtor's financial situation. The factors in favour of granting leave were said to be that the reasons for delay were explained, that the indulgences granted ought not to prejudice the application, that no impression had been given that the order did not need to be satisfied and that if leave were refused the applicant would be able to bring a fresh proceeding.
Having regard to section 10(4) of the Limitation of Actions Act 1974, similar considerations apply here, such that the order sought ought to be made.
It might be noted that the order requires the enforcement debtor to pay costs on the standard basis. That order is made on the basis of what Mr Patane's affidavit suggests is the enforcement debtor's deliberate elusiveness. The court ought not to shrink from making that order even though the applicant may be charged with allowing too much time to elapse.
Since this order is made in the absence of Mr Moore, comfort may be taken from the ability he has to approach the court to seek to have today's order, including the costs order, revisited if he can show a reasonable case for that.
Order as per initialled draft.