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Oxanda Child Care Pty Ltd v Preschool Services Australia Pty Ltd[2015] QDC 126

Oxanda Child Care Pty Ltd v Preschool Services Australia Pty Ltd[2015] QDC 126

DISTRICT COURT OF QUEENSLAND

CITATION:

Oxanda Child Care Pty Ltd v Preschool Services Australia Pty Ltd [2015] QDC 126

PARTIES:

OXANDA CHILD CARE PTY LTD ACN 166 793 004

(applicant/plaintiff)

v

PRESCHOOL SERVICES AUSTRALIA PTY LTD ACN 103 487 805

(respondent/defendant)

FILE NO/S:

1073/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 May 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2015

JUDGE:

Samios DCJ

ORDER:

The Defendant not having filed a Notice of Intention to Defend,

THE JUDGMENT OF THE COURT IS THAT the Defendant pay to the Plaintiff the amount of $270,457.22 which sum includes $7,037.43 for interest and $11,829.64 for costs.

THE COURT DECLARES THAT:

  1. The plaintiff is entitled to the Requisition Amount.
  2. The defendant has no proprietary right or claim upon the Requisition Amount.

CATCHWORDS:

PRACTICE – DEFAULT JUDGMENT – where the plaintiff filed and served a claim and statement of claim on the defendant – where the defendant acknowledged receipt of the plaintiff’s claim and statement of claim – where the defendant did not file and serve a notice of intention to defend and defence despite being given an extension of time by the plaintiff – whether the merits of the claim need to be considered before proceeding to judgment for the applicant/plaintiff – whether judgment should be given for the plaintiff against the defendant

Legislation

Uniform Civil Procedure Rules 1999 (Qld) rr 137, 283, 284, 285, 286, 288

Cases 

Crane Distribution Ltd v Brown [2011] QSC 90

Tasmanian Bluefin Pty Ltd v Bald & Anor [2013] QDC 297

Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85

COUNSEL:

Mr L Tassell (solicitor) for the applicant/plaintiff

No appearance for the respondent/defendant

SOLICITORS:

CBP Lawyers for the applicant/plaintiff

No appearance for the respondent/defendant

  1. [1]
    HIS HONOUR: On 17 March 2015, the plaintiff filed a claim and statement of claim against the defendant. Take a seat, please, Mr Tassell.  The claim sought damages in the sum of $251,590.15 and a declaration that the plaintiff is entitled to the requisition amount and a declaration that the defendant has no proprietary right or claim upon the requisition amount.  The claim also sought interest and costs on an indemnity basis, pursuant to the agreement.
  1. [2]
    The evidence shows the defendant was served with the claim on 18 March 2015.  In fact, the defendant’s lawyers acknowledged the defendant’s receipt of the claim.  As the evidence shows, despite the plaintiff giving the defendant further time to file its notice of intention to defend and defence, the defendant has not appeared in the proceedings within the requisite 28 day period, as required by rule 137 of the UCPR.
  1. [3]
    The correspondence exhibited to Mr Dayton’s affidavit filed on behalf of the plaintiff shows that the solicitors for the defendant were seeking further time.  In addition, they claimed the requisition amount had been paid to the plaintiff and that, therefore, the claim and statement of claim should be amended.  They then said that once that was done they would need some more time to file the notice of intention to defend and defence to that amended claim and statement of claim.  Nevertheless, the plaintiff’s solicitors put the defendant’s solicitors on notice that they required the defendant’s defence by 5 pm on 28 April 2015.  They said in the event that the defendant failed to do so the plaintiff would request judgment against the defendant.
  1. [4]
    The proceedings before me today are an application for judgment for the sum of $258,627.58, which is inclusive of interest, and a declaration that the plaintiff is entitled to the requisition amount, being the sum of $110,000 held in the CBP Lawyers trust account, and a declaration that the defendant has no proprietary claim to the requisition amount.  Further, the plaintiff today claims against the defendant costs on the standard basis.
  1. [5]
    I have given leave to the plaintiff to read and file a further affidavit today of Mr Dayton.  He is swearing to the sum owing and to the costs that are claimed.  There is clearly a typographical error in paragraph 3 of his affidavit when he states the defendant has incurred costs and disbursements to date in the sum of $11,829.64.  Clearly that should be “plaintiff”, and I proceed on that basis.
  1. [6]
    The statement of claim uses language that might suggest what is being claimed is unliquidated damages, however having considered the matter I am satisfied that the claim that is being made is for liquidated damages.  In addition, I was concerned about the costs being claimed in the sum claimed, however if they are indemnity costs, then clearly I would be prepared to allow them.  They are claimable, pursuant to clause 6.4 of the agreement, which is pleaded in the statement of claim.
  1. [7]
    The application today is brought pursuant to rule 288 of the Uniform Civil Procedure Rules.  As a claim is made for declarations, which cannot be made under rules 283, 284, 285 and 286, then this is the appropriate rule for the plaintiff to make its application.  As subrule (2) of rule 288 says:

The plaintiff may apply to the court for a judgment.

  1. [8]
    Subrule (3) of rule 288 provides:

On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.

  1. [9]
    I have been referred to the judgment of Fryberg J in Crane Distribution Limited v Dark Star Two Pty Ltd (in liquidation) and Brown where his Honour said:

Rule 288 requires judgment on the pleadings.  Indeed I question whether it is appropriate in an application under that rule to file affidavits which address anything other than service of the claim, whether the defendant is in default and any other procedural matter relevant to the applicability of the rule.  I am aware that this is sometimes done, but I have not found a case which considers the point.  I refrain from deciding it in the absence of argument.

[2011] QSC 90 at paragraph 11.

  1. [10]
    Further, I have been referred to the judgment of his Honour Judge Long SC in Tasmanian Bluefin Proprietary Limited v Bald and Montgomery [2013] QDC 297.  At paragraph 13 his Honour Judge Long SC states that in Watson’s  Specialised Tooling Proprietary Limited v Stevens [1991] 1 Qd R 85 at paragraphs 93 to 94 it was noted that by not entering a notice of intention to defend and defence the defendants are taken to have admitted the claims against them, and here there is no need to assess any damages.  In addition, his Honour Judge Long SC at paragraph 16 stated:

If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

  1. [11]
    His Honour was there considering rule 283, subrule (10) of the UCPR.  Finally, his Honour Judge Long SC in the Tasmanian Bluefin case at paragraph 19 said:

As has been noted and in contrast to UCPR 283(1) and 286(5), there is in UCPR 288, no expressed dispensation with any need to consider the merits of the claim.  Further the power to be exercised under UCPR 288(3) is discretionary and this is of particular importance in considering the claim for a declaration of an equitable interest in the vessel.  This is because it is well recognised that relief in the nature of a declaration of a party’s rights, is an entirely discretionary matter and therefore not to be lightly granted, even if there be no opposition or even consent, before the court.

  1. [12]
    In the end I have come to the view that there is sufficient material before me to proceed under rule 288 of the UCPR.  Clearly there has been service of the proceedings upon the defendant and the defendant is aware of the plaintiff’s intentions to proceed to a judgment.  The notice of intention to defend and defence has not been filed within time or at all.  The plaintiff’s solicitors’ affidavits have brought up-to-date their claims, which I have accepted are liquidated claims, despite the language used in the statement of claim.  In addition, they have sworn to the costs, which I am prepared to allow on an indemnity basis, despite what was claimed in the application.
  1. [13]
    I come to the view that despite the caution his Honour Judge Long SC sounded as to whether the merits of the claim should be considered on an application under rule 288 that I need not consider the merits of the claim before proceeding to give judgment.  Further, that I should, on the face of the pleading and the failure to file a notice of intention to defend and defence, exercise my discretion to grant the claims sought by the plaintiff by way of discretionary relief.
  1. [14]
    Therefore, I give judgment in favour of the plaintiff against the defendant in the sum of $270,457.22, which sum includes $7,037.43 for interest and $11,829.64 for costs.  There will be, therefore, a judgment in the form of the draft initialled by me and placed on the court file, which includes the declarations sought by the plaintiff.  Anything further, Mr Tassell?
  1. [15]
    MR TASSELL: That’s all, your Honour.
  1. [16]
    HIS HONOUR: Yes. Thank you. I’ll just give all this back to my Associate.  No need to wait.  I have a application on the papers to deal with.
  1. [17]
    MR TASSELL: Thank you very much, your Honour.
  1. [18]
    HIS HONOUR: Yes. Thank you.
Close

Editorial Notes

  • Published Case Name:

    Oxanda Child Care Pty Ltd v Preschool Services Australia Pty Ltd

  • Shortened Case Name:

    Oxanda Child Care Pty Ltd v Preschool Services Australia Pty Ltd

  • MNC:

    [2015] QDC 126

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    11 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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