AVS Property Pty Ltd v QLD-1 Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

AVS Property P/L v QLD-1 P/L & Ors [2007] QSC 365

PARTIES:

AVS PROPERTY PTY LTD ACN 094 311 645
(plaintiff/respondent)
v
QLD-1 PTY LTD ACN 112 570 617
(first defendant/applicant)
GEORGE CHEIHK
(second defendant)
ZOE CHEIHK
(third defendant/applicant)
QLD DEVELOPMENTS PTY LTD ACN 103 914 709
(fourth defendant/applicant)

FILE NO/S:

BS 7609 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2007

JUDGE:

Martin J

ORDER:

The default judgment dated 16 May 2007 obtained by the plaintiff be set aside

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – DEFAULT JUDGMENT – where judgment entered in default of defendants filing a Notice of Intention to Defend – whether default judgment should be set aside

Uniform Civil Procedure Rules 1999 (Qld), r 290

Ampol Petroleum (Qld) Pty Ltd v Easton [1955] QWN 79, cited
Evans v Bartlam [1937] AC 473, cited
GE Capital Australia v Davis [2002] NSWSC 1146, cited
National Mutual Life Ass’n of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, applied

Owenlaw Mortgage Managers Ltd v NK River Pty Ltd [2005] VSC 464, cited
Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Ass’n of Australasia Ltd [1984] Qd R 447, cited
Troiani v Alfost [2002] QCA 281, applied

COUNSEL:

M M Stewart SC, with D J Pyle, for the plaintiff
P J Dunning SC, with S R Lumb, for first, third and fourth defendants

SOLICITORS:

B2B Lawyers, Melbourne, for the plaintiff
Bain Gasteen for the first, third and fourth defendants

1. MARTIN J: This is an application by the first, third and fourth defendants to set aside a judgment entered in default of filing a Notice of Intention to Defend.

1. The judgment entered was that the defendants pay to the plaintiff the sum of $1,462,059.34, which sum included interest and costs.

Background

1. In December 2005 a series of agreements were entered into involving the parties to this action. They were:

   (a)        a deed entitled “Deed of Loan and Guarantee” (“the $1.2 million loan agreement”) between the plaintiff (“AVS”) and the third defendant (“Zoe Cheihk”)(as borrower and as guarantor) and the first (“Qld-1”), second (“George Cheihk”) and fourth defendants (“Qld Developments”) (as guarantors), pursuant to which AVS agreed to advance the sum of $1.2 million to Zoe Cheihk;

   (b)        a second deed entitled “Deed of Loan and Guarantee” (“the $4 million loan agreement”) between AVS and Zoe Cheihk (as borrower and as guarantor) and Qld-1, George Cheihk and Qld Developments (as guarantors), pursuant to which AVS agreed to advance the sum of $4,000,000 to Zoe Cheihk;

   (c)        a written agreement entitled “Share Sale and Subscription Agreement” (“the SSS Agreement”) between Zoe Cheihk, Opdicom Holding Pty Ltd (“Opdicom Holdings”), Opdicom Pty Ltd (“Opdicom”) and Mario Salvo pursuant to which, among other things, Opdicom Holdings agreed to transfer 1,450,000 fully paid shares held…