ATS P/L v Roberts

[2007] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

ATS P/L v Roberts [2007] QMC 4

PARTIES:

ATS PTY LTD

(plaintiff)

v

WAYNE ROBERTS

(defendant)

FILE NO/S:

M169/06

DIVISION:

Magistrates Courts

PROCEEDING:

Application to set aside judgment

ORIGINATING COURT:

Magistrates Court at Coolangatta

DELIVERED ON:

27 April 2007

DELIVERED AT:

Coolangatta

HEARING DATE:

27 April 2007

MAGISTRATE:

Costanzo JJ

ORDER:

1.   The judgment by default made on 30 October 2006 is set aside.

2.   Costs of and incidental to this application are reserved.

CATCHWORDS:

CIVIL LAW – PRACTICE AND PROCEDURE - application to set aside judgment by default — whether the defendant raised a prima facie defence on the merits — whether the defendant has raised triable issues — reason for delay in filing defence - reason for delay in making the application to set aside judgment

Uniform Civil Procedure Rules 1999, r 290

Aboyne Pty Ltd v. Dixon Homes Pty Ltd [1980] Qd R 142.

National Mutual Life Association of Australasia Ltd v. Oasis Developments Pty Ltd [1983] 2 Qd R 441.

New Capital Finance P/L v Miller [2002] QDC 291.

Unique Product Marketing Pty Ltd v. Bortek Sales Pty Ltd [2000] QDC 314.

Yankee Doodles Pty. Ltd. V. Blemvale Pty. Ltd. [1999] QSC 134 (unreported 23 June 1999).

COUNSEL:

Sweeney for plaintiff

Ippolito for defendant

SOLICITORS:

Agent for Phillips Fox for plaintiff

Chris Trevor & Associates for defendant

The Application

1. This is an application under the Uniform Civil Procedure Rules 1999 (UCPR) rule 290 to set aside a judgment by default made on 30 October 2006.

1. Rule 290 provides a discretion:

“The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.”

1. There is no suggestion the judgment was entered irregularly such as that the Registrar had no proof of service or the appropriate affidavit material before him.

1. The judgment was entered under r 281 on the basis that the defendant had not filed a notice of intention to defend.

1. There was a delay of 15 weeks between the judgment being entered, being notified to the defendant on 3 November 2006 and this Application being filed on 15 February 2007.

Issues

1. The Defendant/Applicant relies on three grounds:

1.          The proceedings have been brought against the wrong defendant.

2.          If the correct defendant, then the proceedings arose in the State of Tasmania and are brought in the wrong jurisdiction.

3.          The Defendant was not served with the proceedings (despite an Affidavit of Service to the contrary) and was unable to defend himself before the judgment was made on 30 October 2006.

Discretion To Set Aside Default Judgment

1. The Defendant relies on New Capital Finance P/L v Miller [2002] QDC 291 where Forde DCJ held—

“The Applicant is now required to satisfy the requirements of rule 290 UCPR. The court has to be satisfied that:

a. The Applicant has a defence on the merits

b. An explanation is necessary as to why no defence was filed within the prescribed time

c. Explain (sic) any delay in making the application.

See Yankee Doodles Pty. Ltd. V. Blemvale Pty. Ltd. [1999] QSC 134 (unreported 23 June 1999).”

1. In the earlier decision in Unique Product Marketing Pty Ltd v. Bortek Sales Pty Ltd [2000] QDC 314, Shanahan DCJ went further and stated at [28]—

“The relevant considerations to be taken into account are:

(a) whether there is a good reason why the defendant failed to file a defence;

(b) whether there has been any delay by the defendant in bringing the application;

(c) the defendant’s conduct in the action before and after judgment;

(d) the defendant’s good faith;

(e) whether the defendant has raised a prima facie defence on the merits (raising triable issues); and

(f) whether the plaintiff would be irreparably prejudiced if the judgment is set aside which cannot be adequately compensated by a suitable award of costs.

1. While I can see the considerations at (b), (c) and (d) above may be different considerations, here they can all be related to the issue of delay.

1. To have judgement set aside, the defendant must establish that it has a prima facie defence on the merits to the claim on which the judgment was founded: Aboyne Pty Ltd v. Dixon Homes Pty Ltd [1980] Qd R 142; National Mutual Life Association of Australasia Ltd v. Oasis Developments Pty Ltd [1983] 2 Qd R 441 at 449 where McPherson J described this element as “the most cogent”.

1. In my view, with respect, threshold issues going to the jurisdiction of the court must also be of paramount concern when considering whether triable issues have been raised.

Jurisdictional and Factual Issues

Has the defendant raised a prima facie defence on the merits? Has he raised triable issues?

1. McPherson J in National Mutual Life Association of Australasia Limited v. Oasis Developments Pty Ltd [1983] 2 Qd R 441 noted at 449:

“It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending … ..”

The threshold issues: Jurisdiction on several fronts

1. The Claim was made for “damaged goods and goods supplied to the defendant at the defendant’s request.”

1. The defendant deposes to the fact that at the relevant time he was an employee of a corporation Fat Spider Enterprises Pty Ltd (also known as FSE P/L). He was employed to install Austar PayTV systems in the homes of the plaintiff’s customers. All work was performed in the State of Tasmania. The plaintiff has not filed any material to contradict this evidence. There is no evidence before the court that the said goods were supplied to the defendant in his personal capacity and not as an employee of FSE.

1. By the time the Claim was filed on 26 July 2006, Wayne Roberts had become the second director of FSE. He became a director on 1 August 2005.

1. The respondent/plaintiff relies on an agreement dated 2 September 2003 between “Access Television Services Pty Ltd ACN 070 457 180 [address] and FSE P/L” to ground their argument that this court has jurisdiction to hear and determine the claim. Clause 34 (Governing Law) provides, inter alia, that the Agreement is governed by the laws of Queensland and that “the parties” submit to the jurisdiction of the Courts of Queensland.

1. It is immediately obvious the defendant Wayne Roberts was not a party to the agreement and has not agreed to submit himself to the jurisdiction of the Courts of Queensland.

1. Next, it is said Wayne Roberts is the wrong party. On the facts as presented this is at least arguable. If he is the correct defendant, it is also arguable that the correct jurisdiction is either in the State of Tasmania where the work was done, where the goods are still located or in the Gladstone Magistrates Court District which I believe is the District in which the defendant resides. See UCPR rule 35.

1. If he is the wrong party, and if the correct defendant is FSE, then it is still unclear why the correct jurisdiction is at Coolangatta (just within Queensland) and not at Southport or elsewhere.

1. If he is the correct party, Wayne Roberts has not provided any evidence of an arguable defence on the merits, probably because the plaintiff has not provided any particulars to the court to show the goods were delivered to him personally and not on behalf of FSE. However, he submits, should the application to set aside default judgment be granted he will file a conditional Notice of Intention to defend objecting to the jurisdiction of the court to hear the matter. That would also be the time to address the merits of the claim and statement of claim.

1. There are therefore several triable issues going to the jurisdiction of the court over the parties and over the dispute.

Explanation as to why no defence was filed within the prescribed time

1. Wayne Roberts deposes he was not served with the proceedings, did not know that he was supposed to appear and could not therefore file a notice of intention to defend. While it could be said paragraphs [20] and [21] of his affidavit appear obtuse, he does finally build to a denial, at paragraphs [23] and [24], of being the person present and a denial of having any service or knowledge.

1. As against this there is an affidavit of service by David Ian Paige filed on 17 October 2006 deposing that the person he served the papers on identified himself as the Wayne Roberts referred to within the documents.

1. There is therefore a case of oath against oath but neither has been subjected to further investigation or cross-examination. This can occur for, and at, trial.

Explanation for defendant’s delay in making this application

1. The delay of 15 weeks between the judgment being entered and this Application being filed on 15 February 2007 is borderline excessive. The only reasons submitted for the delay were an intervening holiday period and the time needed to collect relevant material. I must assume in the defendant’s favour that the delays were not all his, and that while the only material presented to the court is his affidavit and the Agreement, he would have needed to gather other “relevant material” in order to instruct his solicitor and in turn the town agent.

Would the plaintiff be irreparably prejudiced?

1. The plaintiff would not be irreparably prejudiced, if the judgment is set aside, in such a way which cannot be adequately compensated by a suitable award of costs.

1. The goods in question are available for collection (even if the onus is on the ATS under clause 31.4 of the agreement to return the goods at their own cost) and are still stored in Tasmania in a secure shed on property still owned by Wayne Roberts.

1. If the Plaintiff company is ultimately successful it can be compensated with costs and interest to account for delay in proceedings. In these proceedings (i.e. in this application) it may also be possible, given the delays, to ultimately award costs against the Applicant/defendant even if he succeeds thus alleviating any prejudice to the plaintiff.

Costs

1. The Defendant submits he is entitled to costs now. Given the nature of the pending issues the costs should be reserved.

Conclusion

1. For all of the reasons given above the Application should be granted.

ORDERS

1. 1. The judgment by default made on 30 October 2006 is set aside.

1. 2. Costs of and incidental to this application are reserved.