Moore v Devanjul Pty Ltd (No 4)
[2013] QSC 291
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- Unreported Judgment
- Moore v Devanjul Pty Ltd (No 4)[2013] QSC 291
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Moore v Devanjul Pty Ltd (No 4)[2013] QSC 291
Moore v Devanjul Pty Ltd (No 4)[2013] QSC 291
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 25 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 October 2013 |
JUDGE: | McMeekin J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – where the trial has been heard – where second and fifth defendants failed to appear – where judgment was reserved – whether the hearing should be reopened Uniform Civil Procedure Rules 1999 Cook v D A Manufacturing Pty Ltd & Anor [2004] QCA 52 cited Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited [1984] 2 Qd R 447 cited Wilson v Orreal [2012] QSC 315 cited |
COUNSEL: | SJ Deaves for the Plaintiff Second Defendant appeared on her own behalf |
SOLICITORS: | Carswell & Company for the Plaintiff Second Defendant appeared on her own behalf |
[1] McMeekin J: This is an application by the second defendant, Mrs Vanessa Berthelsen, to reopen the hearing of the matter. She appears, as usual, unrepresented. I have had long experience with this matter.
[2] On 30 September, I heard the trial in this proceeding. The second and fifth defendants, the only remaining defendants with a possible interest in the matter,[1] did not appear. The fifth defendant had not filed a defence.
[3] I was satisfied that the plaintiff had complied with the rules relating to service and had taken steps to notify the defendants of the trial dates. As well the Registrar had issued notices advising of the trial date not only to Mrs Berthelsen’s address for service but at another address that he thought, accurately as it turns out, might have become her residential address in the meantime.
[4] The plaintiff proceeded under r 476 Uniform Civil Procedure Rules (UCPR). I reserved my decision and have not yet delivered it.
[5] Two days after that trial the second defendant says that she learnt from her sister that there had been a hearing. Her sister had been reading the electronic records of the Court and noticed the matter had been set for trial. Mrs Berthelsen promptly rang the Registrar of the Court and claims that for the first time she learnt that the matter had been set down for hearing. The matter was brought to my attention. I directed that if there was to be an application that it be heard on 9 October and I made certain directions concerning the filing of material and attendance. Mrs Berthelsen filed the present application two days later.
[6] Mr Deaves of counsel appeared for the plaintiff. He submitted that the relevant principles to apply were akin to those applicable to an application to set aside a default judgment regularly entered – that is that the applicant should show a satisfactory explanation for the non attendance, should apply promptly to set aside, and demonstrate a prima facie defence on the merits.[2] He submitted too that the last of these factors was the most important and not satisfied here. Further he submitted that where, as here, the matter had proceeded through the court’s processes to trial in the proper way, that is that this was not a case of some procedural default by the defendant, then the circumstances justifying a reopening and rehearing would need to be “very special”: Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited [1984] 2 Qd R 447 at 458 per Andrews SPJ.
[7] I accept that similar considerations apply to this application as to the default judgment position albeit that no judgment has been entered. The only real practical significance is the possible savings in costs thrown away that might accrue in some cases where the application is brought before judgment but that is not the case here. As well it may be appropriate to proffer some more limited relief, for example a right to cross examine or make submissions, but Mrs Berthelsen did not seek that here.
[8] Assuming those principles apply then if indeed Mrs Berthelsen learnt of the matter only a few days ago then she has acted promptly. Mr Deaves questioned the factual premise given the improbability of a relative checking the court’s electronic records on spec, but I do not see the need to decide the issue.
[9] As to the explanation for the delay Mr Deaves submitted that Mrs Berthelsen was not a witness of credit. Mrs Berthelsen provided an affidavit and was cross examined. There are certainly aspects of her account that are difficult to accept. Her account of not having any access to any computer or telephone over the course of the last nine months is scarcely credible. And she has a strong tendency to construe matters as she would like them to have been rather than as they were.
[10] For example, Mrs Berthelsen persisted in arguing that the non service of proceedings on her son Kailen Berthelsen last December was relevant in some way. Her view was that the lack of service was the plaintiff’s default and somehow reflected adversely on the plaintiff. Service on her son was not relevant at all to her personal position. But Mrs Berthelsen well knew that there had been attempts to serve her son personally, knew that I had ordered that be done, and violently objected to those attempts, evidenced by two outrageous emails sent by her to the plaintiff’s solicitors’ office. Those emails strongly suggested that there had been correspondence between mother and son and that the son knew perfectly well of the proceedings. When specifically questioned by Daubney J in Brisbane in December last year Mrs Berthelsen refused to divulge her son’s address to enable there to be personal service. To blame the plaintiff in these circumstances is remarkable.
[11] So I approach Mrs Berthelen’s claims with some circumspection. She certainly gives every appearance of believing her own statements but some are plainly wrong and some too incredible to believe.
[12] But even taking Mrs Berthelsen’s claims at their highest while she has an explanation for her non-attendance, it barely merits the description satisfactory.
[13] Mrs Berthelsen has had a very bad year. In November last year she was attacked by her husband and suffered some injury. As well she seems to have had a falling out with her son Kailen, the fifth defendant. Floods wrecked her home in January and again in February. As a result she lost her court documents which were voluminous. She had to abandon her home. She was again subjected to violence by her husband in March. On 22 March she retreated to a Womens’ Refuge in Maryborough. She left there in late April and went to the home of a daughter. Because of the violence at home her 12 and 13 year old children were taken from her by the Department of Children’s Services. On 8 June she obtained the lease over a residence at 4/24 Bargara Lakes Drive. On 12 August she was subjected to further violence at the hands of her husband and was admitted to hospital. She was discharged a few days later. She lived with a daughter. She returned to the rented home only a week and a half ago. She says that she is still physically affected by the assaults on her by her husband. There are domestic violence proceedings extant. Her husband sat in the back of the Court during the hearing of this application.
[14] This rather sad litany of disasters merits sympathy.
[15] But what is omitted is that Mrs Berthelsen has abandoned both her address for postal service and her email address, has made no effort to re-direct her mail and has not advised of any substituted address. She has not made any electronic or telephonic contact with anyone to do with the proceedings – whether it be the registrar or the solicitors acting for the plaintiff. She has had no dealings with anyone relevant to the case, save once, in the nine months since late December 2012. She claims that she had no idea that the matter would proceed in the interim. Why she thought that is difficult to imagine.
[16] The proceedings concern a lease of certain land, the plaintiff being the lessee and Devanjul Pty Ltd (the then trustee of the Jadvek Berthelsen Family Trust (“JBFT”) the lessor. The plaintiff alleges a trespass and the destruction of his business. The parties have been engaged in litigation in this Court and the District Court over that lease for some six or seven years. Mr Moore has been successful on three occasions before the District Court. The parties were before me on a number of occasions through 2012 in interlocutory applications in this proceeding and ten applications were before the court in November including one by the plaintiff when he sought and obtained leave to further amend his case. The fifth defendant Kailen Berthelsen was then joined, it having become clear that he was now the trustee of the JBFT. A counterclaim purportedly brought by the fifth defendant was struck out and all defendants were given leave to amend their defences.
[17] On 21 December 2012 Mrs Berthelsen brought an urgent application in Brisbane as she was worried that default judgment might be brought against her in the meantime. In the course of that proceeding the plaintiff’s solicitor, Mr Ponti, explained that because of difficulties in effecting service on the fifth defendant he intended to make an application for substituted service in the New Year and he had no intention of seeking default judgment. As mentioned, Daubney J then expressly invited Mrs Berthelsen to assist by providing her son’s address and she declined to do so.
[18] Given these manoeuvrings it is impossible to accept that Mrs Berthelsen thought that the matter would simply go away in January.
[19] The one occasion since that hearing on 21 December that she did have any relevant contact was on 27 March 2013 with Mr Ponti. It was a meeting by chance in Mr Ponti’s office in Maryborough. Mrs Berthelsen says that she went there to make an appointment to see Mr Ponti but happened to meet him while she was there. Mr Ponti has filed an affidavit swearing to much the same effect. What precisely was said is in dispute but again much to the same effect.
[20] Mr Ponti says that he told Mrs Berthelsen that his instructions were to continue to litigate the matter, that she, the fourth defendant a Mr Wilson, and her son as trustee, were still involved in the matter but that if she was prepared to sign a consent judgment the matter would be ended so far as her involvement was concerned.
[21] Mrs Berthelsen says that Mr Ponti told her that if she signed “a form” the matter would be ended. She says that she did not know what the nature of the form was. Mr Ponti, she says, told her that the plaintiff was interested in pursuing Mr Wilson alone as she had no assets.
[22] On the crucial point I prefer Mr Ponti’s version not least because he exhibited a letter that he says was sent to Mrs Berthelsen dated that day, 27 March, enclosing a form of Consent Judgment. Mrs Berthelsen says that she did not receive that or any form. There is no evidence that Mrs Berthelsen did receive the letter. Perhaps she did not although it is puzzling why she would not have. At the time she was staying in the Womens’ Refuge. Mr Ponti’s firm acted for the Refuge. He says that he sent the letter to the address of the Refuge. Mrs Berthelsen did not say that it was sent to the wrong address. Mrs Berthelsen was at the Refuge probably until the end of April, ample time for the letter to reach her.
[23] Whatever be the true state of affairs Mrs Berthelsen could not have assumed the matter was at an end. At the vey highest for her she had to sign something to end it and she did not. She knew from her conversation that the matter was continuing and indeed there was never any reason to think otherwise. Presumably that is why she went to Mr Ponti’s office. She did not take that opportunity to advise that her email address was not in service, something she maintains has occurred.
[24] I note that no evidence is proffered to show that is the case, that is that her email account has closed, save her assertion. No one has reported that emails sent to that address or to Kailen Berthelsen’s email address have been returned as undeliverable. But even accepting Mrs Berthelsen’s claim, it does not assist her.
[25] Litigants who do not maintain their address for service, and know that they are not maintaining an address for service, can hardly complain if steps are taken in proceedings without them being made aware of them. And Mrs Berthelsen in particular should know this.
[26] Mrs Berthelsen has long experience with the Courts and with litigation. She is well aware of her obligations to the Court and to the other parties. I refused her application last year to set aside a decision of the Court, one she said had been made without notice and without her knowledge.[3] That decision should have brought home to her, if there was any need to, of the importance of keeping in touch with the Court and the other parties to the matter.
[27] I note too that personal service was eventually affected on Kailen Berthelsen in June. Mrs Berthelsen was aware of that service as she says that the fifth defendant came to her home in a rage and told her he had been served with documents, although she says she did not know what documents he was talking about. Even if there was any basis for thinking the matter had gone away prior to that service, and there is not, Mrs Berthelsen could hardly assume there was no need then to make enquiry as to what was occurring in the proceedings. That service did not prompt a response, either from her or from the fifth defendant.
[28] So I am unimpressed with the reasons proffered for the non-attendance. Sad as Mrs Berthelsen’s year has been she has wilfully avoided her obligations and without any proper cause. She could easily have made contact with the Court, or Mr Ponti, at some point and advised of some alternative method of communication. She chose not to.
[29] There remain two matters. First is the question of a defence on the merits. Mrs Berthelsen has two defences filed, one plainly on her own behalf as second defendant and the other a defence that she filed personally claiming to act not as trustee but on behalf of the trustee of the Jadvek Berthelsen Family Trust. There she describes herself merely as “defendant”. The heading used does not reflect the true state of the parties to the record. So it is difficult to know what Mrs Berthelsen intended by the filing of the document.
[30] The relevant point is that neither defence pleads any relevant fact. Mrs Berthelsen cannot advance any fact against the plaintiff without amending her pleadings: rr 165(2), 166(5). In the course of her cross examination Mrs Berthelsen made clear that there were issues of fact that she wanted to agitate about her right to be on the land the subject of the dispute. But the basis for that claim has never been pleaded, the proceedings now being four years old and the alleged trespass six years ago.
[31] Further the plaintiff is interested in obtaining recourse to the assets of the JBFT, hence the presence of the fifth defendant in the proceedings. Evidence given in the course of the hearing by Mrs Berthelsen suggests that is a forlorn hope as the debts of the trust exceed the assets on her account. Whatever be the case the plaintiff seeks to proceed to obtain what orders he can to recover a worthwhile money judgment.
[32] No defence has been filed by the trustee of that fund, the fifth defendant. Mrs Berthelsen has indicated that she seeks to regain the position of trustee – she was previously trustee but relinquished that role to her son Kailen – and wishes to file a defence. What defences are sought to be raised by the trustee are not yet particularised. I note that I pointed out deficiencies in the defences that I thought were to be relied on in my reasons of 14 November 2012 – see [2012] QSC 355 at [68]. I am confident that Mrs Berthelsen, who I perceive to be the guiding mind on the defence side of the record, has appreciated, at least since those reasons were published, that no valid defence has ever been filed by the trustee of the fund. The concern now expressed is belated and the plight of the fifth defendant can carry little weight.
[33] So the full scope of the dispute is not yet clear from the pleadings. The potential disputes concern matters that will be very difficult to establish so long after the event. The true state of the premises, what repairs, if any, were required to property, what repairs, if any, were reasonably justified as urgent, the right of the lessor to enter onto the land, the extent of the work, or damage, done, where Mr Moore was at relevant times, and the state of Mr and Mrs Berthelsen’s knowledge of Mr Moore’s whereabouts are a few of the potential issues.
[34] As well no evidence is proffered, apart from mere assertion, to show that any of the potential arguments has any merit.
[35] The second issue is the question of fairness to Mr Moore.
[36] Mrs Berthelsen is impecunious. She says that she has no income or assets. Mr Moore, without fault on his part, has gone to the expense of running a trial. Significant costs will be thrown away if there is to be a re-hearing. The plaintiff’s solicitor has sworn that the costs thrown away will be $10,482 with a further $3,406 spent on this application to re-open the hearing. Mrs Berthelsen says she can pay none of this.
[37] As well any judgment that the plaintiff might obtain will be an empty one. So any re-trial will be one in which Mrs Berthelsen has nothing to lose and Mr Moore nothing to gain save the certainty of more expense assuming he is represented, as he is entitled to be.
[38] While it is not particularly relevant I should mention that this is the second time this has occurred. The trial was originally listed to be heard in July. There was no appearance by Mrs Berthelsen then but the fourth defendant did appear and sought successfully to adjourn the trial. He did proffer monies to compensate for costs thrown away and he did explain the issues that he wished to agitate – defences that Mrs Berthelsen could not avail herself of. So there has been ongoing delay not of the plaintiff’s doing.
[39] It seems to me that this combination of circumstances, the knowledge that the matter would proceed or the patent unreasonableness of any other assumption, the wilful ignoring of obligations imposed by the rules, the inadequacy of the pleadings and the ignoring of those deficiencies in the defences that I pointed out in my reasons nearly a year ago, the deliberate attempts of the trustee to avoid service, the dilatoriness of the defendants in responding to the eventual personal service in June, and particularly the unfairness to Mr Moore given the substantial costs to be thrown away, requires the rejection of the application.
[40] The application is refused. I order that the second defendant pay the costs of the plaintiff.