Allen v Dungey - [2015] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Allen & Anor v Dungey [2015] QDC 167

PARTIES:

GLEN LEROY ALLEN and MARGARET ELIZABETH ALLEN
(plaintiffs)

v

SUNDAY DUNGEY
(defendant)

FILE NO/S:

49/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

18 June 2015 ex tempore

DELIVERED AT:

Bundaberg

HEARING DATE:

18 June 2015

JUDGE:

Smith DCJA

ORDER:

1. The default judgment is set aside.

2. The defendant is to pay the plaintiffs’ costs of and incidental to the application fixed in the sum of $1500.

CATCHWORDS:

PRACTICE AND PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – whether irregularly entered- whether conditions should be imposed

Civil Proceedings Act 2011 (Q) s 59

Uniform Civil Procedure Rules 1999 (Q) rr 150, 284, 285, 290

Alexander v Ajax Insurance Company Limited [1956] VLR 436

Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 337

Browning v ANZ Banking Group Limited [2014] QCA 43

Coshott v Sakic (1998) 44 NSWLR 667

Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313

Green v Tri-Barfen Pty Ltd [2006] QDC 160

Heydon v Perpetual Executors Trustees and Agency Company WA Limited (1930) 45 CLR 111

Nelson v Nelson (1995) 184 CLR 538

Shevill v Builders Licensing Board (1982) 149 CLR 620

Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

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

COUNSEL:

Solicitors for the plaintiffs

Ms A. Nicholas for the defendant

SOLICITORS:

Bedford and associates for the plaintiffs

RNG Lawyers for the defendant

This is an application by the Defendant to set aside a judgment entered against her on the 9 January 2014 in the sum of $146,525.87, together with $158.37 interest and $1782.50 in costs. The application is pursuant to rule 290.

The claim and statement of claim were filed on the 29 October 2013. The statement of claim alleges that, in or about April or May 2006, the Plaintiffs agreed with the Defendant that they would provide money to a CommSec account so the Defendant could purchase shares on condition the dividends would be paid to the Plaintiff. Further, on their death, the shares would become the property of the Defendant. It is to be noted the Defendant was the daughter of the Plaintiffs. I note one of the Plaintiffs is now deceased. It was agreed the Plaintiffs would have internet access to the CommSec account.

It is pleaded that the Plaintiffs provided a total of $104,677 to the Defendant for the purchase of the shares. In effect, it is alleged this agreement was breached because the Defendant failed to pay dividends on time. Further it is alleged that in or about October 2009, she ceased access to the Plaintiff to the CommSec account and she sold 4250 Westpac shares and purchased others without the knowledge of the Plaintiffs.

As a result, a dispute arose between them. In April 2010, this dispute was resolved. A statutory declaration was executed in which the…

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.

Continue reading Allen v Dungey

Details

AGLC: Allen v Dungey [2015] QDC 167
Case: [2015] QDC 167
Decision Date: 18 June 2015 ex tempore

CaseChat Overview and Summary

The matter of Allen v Dungey was before the court, where the plaintiff sought to set aside a default judgment entered against the defendant. The dispute involved an application under the relevant rules of court to vacate a judgment that the plaintiff alleged was entered irregularly. The court was tasked with determining whether the default judgment was irregular and, if so, whether any conditions should be imposed on the defendant before setting it aside.

The primary legal issue before the court was whether the default judgment was entered irregularly, thus warranting its setting aside. The court considered the procedural fairness in the entry of the default judgment and whether the defendant had a reasonable excuse for failing to respond to the proceedings in time. Additionally, the court deliberated on whether setting aside the judgment would cause injustice to the plaintiff and if any conditions could be imposed on the defendant to mitigate this potential injustice.

The court found that the default judgment was indeed entered irregularly, primarily due to procedural errors in the service of documents, which failed to meet the statutory requirements. The court further determined that the defendant had a reasonable excuse for not responding in time, as the procedural errors contributed to the failure to respond. Consequently, the court set aside the default judgment and ordered the defendant to pay the plaintiffs' costs of and incidental to the application, fixed in the sum of $1500. No conditions were imposed on the defendant before the judgment was set aside.

Orders

Orders of the court

1. The default judgment is set aside.

2. The defendant is to pay the plaintiffs’ costs of and incidental to the application fixed in the sum of $1500.

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 & Anor v Dungey [2015] QDC 167
PARTIES:	GLEN LEROY ALLEN and MARGARET ELIZABETH ALLEN (plaintiffs) v SUNDAY DUNGEY (defendant)
FILE NO/S:	49/13
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	18 June 2015 ex tempore
DELIVERED AT:	Bundaberg
HEARING DATE:	18 June 2015
JUDGE:	Smith DCJA
ORDER:	1. The default judgment is set aside. 2. The defendant is to pay the plaintiffs’ costs of and incidental to the application fixed in the sum of $1500.
CATCHWORDS:	PRACTICE AND PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – whether irregularly entered- whether conditions should be imposed Civil Proceedings Act 2011 (Q) s 59 Uniform Civil Procedure Rules 1999 (Q) rr 150, 284, 285, 290 Alexander v Ajax Insurance Company Limited [1956] VLR 436 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 337 Browning v ANZ Banking Group Limited [2014] QCA 43 Coshott v Sakic (1998) 44 NSWLR 667 Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313 Green v Tri-Barfen Pty Ltd [2006] QDC 160 Heydon v Perpetual Executors Trustees and Agency Company WA Limited (1930) 45 CLR 111 Nelson v Nelson (1995) 184 CLR 538 Shevill v Builders Licensing Board (1982) 149 CLR 620 Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Watson’s Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85
COUNSEL:	Solicitors for the plaintiffs Ms A. Nicholas for the defendant
SOLICITORS:	Bedford and associates for the plaintiffs RNG Lawyers for the defendant