Australia and New Zealand Banking Group Limited v Twining
[2022] QDC 158
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- Unreported Judgment
- Australia and New Zealand Banking Group Limited v Twining[2022] QDC 158
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Australia and New Zealand Banking Group Limited v Twining[2022] QDC 158
Australia and New Zealand Banking Group Limited v Twining[2022] QDC 158
DISTRICT COURT OF QUEENSLAND
CITATION: | Australia and New Zealand Banking Group Limited v Twining [2022] QDC 158 |
PARTIES: | AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (Applicant) v ERROL DEAN TWINING AND DEBRA FRANCES MUNDAY (Respondents) |
FILE NO/S: | BD 2308/2021 |
DIVISION: | Civil |
DELIVERED ON: | 15 July 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Barlow QC DCJ |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – CORRECTION UNDER SLIP RULE – the claim and statement of claim misdescribed the relevant Crown plan reference numbers of mortgaged properties – plaintiff obtained default judgment for possession of the properties – an enforcement warrant was refused due to the error – whether the default judgment should be set aside with leave to amend the claim and statement of claim or the errors can be amended under the slip rule Uniform Civil Procedure Rules 1999 Qld r 290, r 388 Harris v Commissioner of Taxation [2006] 2 Qd R 445 |
SOLICITORS: | TG Legal & Technology Pty Ltd Solicitors for the plaintiff |
- [1]The plaintiff commenced this proceeding by claim and statement of claim, seeking recovery of two debts and possession of two parcels of land owned by the defendants. Each property is the subject of a mortgage in favour of the plaintiff to secure one or (in the case of one mortgage) both the debts.
- [2]The defendants did not file a notice of intention to defend and defence. The plaintiff then applied for judgment in default of those documents. On 5 April 2022, the Registrar gave default judgment for the debts and for possession of each property described in the claim and statement of claim.
- [3]The claim and statement of claim refer to one of the properties as a certain lot number of Crown Plan B337124 and by reference to its title reference number. They refer to the other property as a lot number in Crown Plan B333743 and by reference to its title reference number. Each of the Crown Plans was misdescribed by one number. The misdescribed numbers were incorporated into the default judgment.
- [4]The plaintiff subsequently applied for an enforcement warrant over one of the properties. The application was refused, in part due to an anomaly between the (correct) description of that property in the draft enforcement warrant and its incorrect description in the claim (and in the application for the warrant).
- [5]The plaintiff now seeks, by an ex parte application to be heard on the papers, orders setting aside the default judgment and granting leave to amend the claim and the statement of claim. In the affidavit supporting the application, the deponent records that the statement of claim also misdescribed the effect of the mortgages, in that one mortgage secured only one of the two debts while the other secured both, but the statement of claim as drawn appears to allege that both mortgages secured both debts.
- [6]The application to set aside the default judgment is made under rule 290. Under that rule, the court may set aside or amend a default judgment. Furthermore, under rule 388, the court may, on its own initiative, at any time correct a clerical mistake in an order that resulted from an accidental slip or omission.
- [7]If I were to accede to the plaintiff’s application, then effectively the plaintiff would have to commence the proceeding again. It would have to serve the amended claim and statement of claim, then, if again no notice of intention to defend were filed within the prescribed time, apply for default judgment, then serve the judgment, then apply for an enforcement warrant. Considerable time and costs would be involved in taking those steps.
- [8]Rule 5(2) provides that the rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules stated in subrule 5(1). It seems to me that to accede to the plaintiff’s application now would be contrary to that obligation, where a simpler, faster and cheaper alternative is available.
- [9]In Harris v Commissioner of Taxation [2006] 2 Qd R 445, at [20], Mackenzie J said:
while the originating claim and the consent to judgment refer to s. 588FF of the Corporations Act, the order on file refers to s. 588F. It is difficult to imagine a clearer case of clerical error which may be corrected under r. 388 UCPR.
- [10]While that error differed from the errors in this case, the same may be said of these errors.
- [11]I am satisfied that the default judgment, insofar as it misdescribed the respective Crown plans, contained clerical errors (that is, the wrong numbers of the Crown plans) that resulted from accidental slips by the plaintiff’s solicitors in drawing the claim and the statement of claim. Rule 388 does not require that an accidental slip causing a clerical error be by the court or a judge. In the circumstances, both under rule 388 and under rule 290, the court has power to amend the judgment to correct the errors. That would at least remove the need for the plaintiff to restart completely the steps that it has taken so far. Rather, it would only have to serve the amended default judgment before applying for an enforcement warrant.
- [12]If the proceeding were contested, the claim and the statement of claim would have to be amended to correct the misdescription of the Crown plans and the misdescription of the effect of one of the mortgages (as securing both debts). However, the latter misdescription has no effect on the correctness of an amended default judgment. As the proceeding is not defended, I consider it unnecessary that the claim and statement of claim be amended, with the consequent additional delay and costs to which I have referred above.
- [13]I do not consider that the defendants would be prejudiced by the court and the plaintiff proceeding in this manner. If they wish to contend that they are so prejudiced, they will be entitled to apply, under rule 290, to set aside the default judgment (as amended).
- [14]Therefore, in lieu of the orders sought by the plaintiff, I shall order that the default judgment be appropriately amended.
- [15]The plaintiff has applied for there to be no order as to costs. As the defendants have not participated in, nor responded informally to, the proceeding so far, it seems appropriate to make a specific order to that effect.