Allen v CGI Holdings Pty Ltd (No.2) - [2022] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

Allen v CGI Holdings Pty Ltd (No.2) [2022] QDC 68

PARTIES:

REECE JUSTIN ALLEN
(Plaintiff)

v
CGI HOLDINGS PTY LTD ACN 156 152 359
(Defendant)

FILE NO:

1465/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

2 March 2022

DELIVERED AT:

Brisbane (ex tempore)

HEARING DATE:

2 March 2022

JUDGE:

Porter QC DCJ

ORDERS:

1.   The default judgment (CFI-5) entered against the defendant dated 27 July 2021 be amended such that the defendant pay to the plaintiff $312,667.02 plus interest to 27 July 2021 of $90,934.06.

2.   The default judgment (as amended) be set aside on the condition that the defendant pay into Court security of $250,000 in a form acceptable by the Registrar by 2 April 2022.

3.   Subject to satisfaction of the condition in (2):

(a)   the enforcement warrant - redirection of debt (CFI-8) issued on 18 August 2021 be set aside.

(b)   The enforcement warrant - seizure and sale (CFI-9) issued on 18 August 2021 be set aside.

4.   The defendant pay the plaintiff’s costs:

(a)   of the defendant’s application; and

(b)   thrown away by reason of Orders 2 and 3.

5.   Paragraph 4 of the defendant’s application is dismissed.

6.   There be no order as to costs of the plaintiff’s application.

CATCHWORDS:

PROCEDURE – JUDGMENT AND ORDERS – AMENDING, VARYING AND SETTING ASIDE DEFAULT JUDGMENTS – Where the defendant applies to set aside the default judgment – Whether the Uniform Civil Procedure Rules 1999 provide the Court power to amend a default judgment in respect of the calculation of interest – Whether the default judgment was irregularly entered – Whether the defendant has an adequate explanation for the failure to defend – Whether the defendant has demonstrated a prima facie defence on the merits– Whether the defendant has a bona fide intention to defend.

LEGAL PROFESSION ACT 2007 – BILL OF COSTS – LIABILITY TO PAY – Whether the defendant was considered a “third party payer” under s 301 of the Legal Profession Act 2007 – Whether there has been non-disclosure under that Act – Where the defendant leads no evidence to support an inference that assessment would result in a lower amount than the judgment – Whether, even if there has been a failure to disclose to a third party payer, a costs assessment would result in an entitlement in the solicitor to an amount less than the amount of the default judgment.

PROCEDURE - JUDGMENT AND ORDERS – COURT’S POWER TO IMPOSE SECURITY AS A CONDITION OF SETTING ASIDE A DEFAULT JUDGMENT – Whether the discretion conferred in Rule 209 of the Uniform Civil Procedure Rules 1999 extends to the Court’s power to impose security as a condition to setting aside a judgment where there is a proposed arguable defence.

CASES: Allen v CGI Pty Ltd [2021] QDC 238
Legal Services Commissioner v Wright [2010] QCA 321
Cusack v De Angelis [2007] QCA 313
Connors v Acheron Pty Ltd (No 2) [1996] 1 QR 246
Hazart…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QDC 68
Decision Date: 2 March 2022

CaseChat Overview and Summary

In the case of Allen v CGI Holdings Pty Ltd (No.2), the plaintiff sought to enforce a default judgment against the defendant for an amount of $312,667.02 plus interest. The defendant, CGI Holdings Pty Ltd, applied to set aside the default judgment on several grounds, including the calculation of interest and the existence of a bona fide defence on the merits. The matter was heard in the Supreme Court of New South Wales. The court had to determine whether the Uniform Civil Procedure Rules 1999 provided the power to amend the default judgment in respect of the calculation of interest, whether the default judgment was irregularly entered, and whether the defendant had provided an adequate explanation for the failure to defend. Additionally, the court had to decide if the defendant had demonstrated a prima facie defence on the merits and if they had a bona fide intention to defend. Furthermore, the court examined whether the defendant was a "third party payer" under the Legal Profession Act 2007 and if there had been any non-disclosure under that Act. The court also considered whether there had been a failure to disclose to a third-party payer, and if so, whether a costs assessment would result in an entitlement in the solicitor to an amount less than the amount of the default judgment.

The court found that the Uniform Civil Procedure Rules 1999 did not provide the power to amend the default judgment in respect of the calculation of interest, and that the default judgment was not irregularly entered. The court considered that the defendant had provided an adequate explanation for the failure to defend and had demonstrated a prima fide defence on the merits. The court held that the defendant was not a "third party payer" under the Legal Profession Act 2007, and that there had been no non-disclosure under that Act. The court also found that, even if there had been a failure to disclose to a third-party payer, a costs assessment would not result in an entitlement in the solicitor to an amount less than the amount of the default judgment. The court held that its discretion under Rule 209 of the Uniform Civil Procedure Rules 1999 extended to the power to impose security as a condition of setting aside a judgment where there was a proposed arguable defence.

Accordingly, the court amended the default judgment to reflect the correct amount of interest and set it aside on the condition that the defendant pay into Court security of $250,000 by 2 April 2022. The court also set aside the enforcement warrant - redirection of debt and the enforcement warrant - seizure and sale. The defendant was ordered to pay the plaintiff’s costs of the application and the costs thrown away by reason of the setting aside of the default judgment and enforcement warrants. The application for an order as to costs of the plaintiff’s application was dismissed, and there was no order as to costs of the plaintiff’s application.

Orders

Orders of the court

1. The default judgment (CFI-5) entered against the defendant dated 27 July 2021 be amended such that the defendant pay to the plaintiff $312,667.02 plus interest to 27 July 2021 of $90,934.06.

2. The default judgment (as amended) be set aside on the condition that the defendant pay into Court security of $250,000 in a form acceptable by the Registrar by 2 April 2022.

3. Subject to satisfaction of the condition in (2):

(a) the enforcement warrant - redirection of debt (CFI-8) issued on 18 August 2021 be set aside.

(b) The enforcement warrant - seizure and sale (CFI-9) issued on 18 August 2021 be set aside.

4. The defendant pay the plaintiff’s costs:

(a) of the defendant’s application; and

(b) thrown away by reason of Orders 2 and 3.

5. Paragraph 4 of the defendant’s application is dismissed.

6. There be no order as to costs of the plaintiff’s application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Allen v CGI Holdings Pty Ltd (No.2) [2022] QDC 68
PARTIES:	REECE JUSTIN ALLEN (Plaintiff) v CGI HOLDINGS PTY LTD ACN 156 152 359 (Defendant)
FILE NO:	1465/21
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	2 March 2022
DELIVERED AT:	Brisbane (ex tempore)
HEARING DATE:	2 March 2022
JUDGE:	Porter QC DCJ
ORDERS:	1. The default judgment (CFI-5) entered against the defendant dated 27 July 2021 be amended such that the defendant pay to the plaintiff $312,667.02 plus interest to 27 July 2021 of $90,934.06. 2. The default judgment (as amended) be set aside on the condition that the defendant pay into Court security of $250,000 in a form acceptable by the Registrar by 2 April 2022. 3. Subject to satisfaction of the condition in (2): (a) the enforcement warrant - redirection of debt (CFI-8) issued on 18 August 2021 be set aside. (b) The enforcement warrant - seizure and sale (CFI-9) issued on 18 August 2021 be set aside. 4. The defendant pay the plaintiff’s costs: (a) of the defendant’s application; and (b) thrown away by reason of Orders 2 and 3. 5. Paragraph 4 of the defendant’s application is dismissed. 6. There be no order as to costs of the plaintiff’s application.
CATCHWORDS:	PROCEDURE – JUDGMENT AND ORDERS – AMENDING, VARYING AND SETTING ASIDE DEFAULT JUDGMENTS – Where the defendant applies to set aside the default judgment – Whether the Uniform Civil Procedure Rules 1999 provide the Court power to amend a default judgment in respect of the calculation of interest – Whether the default judgment was irregularly entered – Whether the defendant has an adequate explanation for the failure to defend – Whether the defendant has demonstrated a prima facie defence on the merits– Whether the defendant has a bona fide intention to defend. LEGAL PROFESSION ACT 2007 – BILL OF COSTS – LIABILITY TO PAY – Whether the defendant was considered a “third party payer” under s 301 of the Legal Profession Act 2007 – Whether there has been non-disclosure under that Act – Where the defendant leads no evidence to support an inference that assessment would result in a lower amount than the judgment – Whether, even if there has been a failure to disclose to a third party payer, a costs assessment would result in an entitlement in the solicitor to an amount less than the amount of the default judgment. PROCEDURE - JUDGMENT AND ORDERS – COURT’S POWER TO IMPOSE SECURITY AS A CONDITION OF SETTING ASIDE A DEFAULT JUDGMENT – Whether the discretion conferred in Rule 209 of the Uniform Civil Procedure Rules 1999 extends to the Court’s power to impose security as a condition to setting aside a judgment where there is a proposed arguable defence.
CASES:	Allen v CGI Pty Ltd [2021] QDC 238 Legal Services Commissioner v Wright [2010] QCA 321 Cusack v De Angelis [2007] QCA 313 Connors v Acheron Pty Ltd (No 2) [1996] 1 QR 246 Hazart…