Bank of Western Australia P/L v Doltar P/L

[2010] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Bank of Western Australia P/L v Doltar P/L & Ors [2010] QSC 8

PARTIES:

BANK OF WESTERN AUSTRALIA PTY LTD
ACN 050 494 454
(plaintiff/respondent)
v
DOLTAR PTY LTD ACN 094 085 597
(first defendant)

HARDCOTE PTY LTD ACN 078 032 247
(second defendant/applicant)

GOLDSCOPE PTY LTD ACN 107 226 120
(third defendant)

KINSLEY ALWYN MUNDEY
(fourth defendant)

TROY ANTHONY ALLEN
(fifth defendant)

JOSHUA PETER HUNT
(sixth defendant)

KENTON WILLIAM SHERWELL
(seventh defendant)

ANDREW DOUGLAS LAWRY
(eighth defendant)

FILE NO/S:

BS 9055 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 January 2010

JUDGE:

Fryberg J

ORDER:

1.   Application dismissed.

2.   The second defendant is to pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

Procedure – Supreme Court procedure – Queensland – Procedure under Rules of court – Default judgment –  Application to set aside – Onus of proof on applicant – Argument in support of application require particularity

COUNSEL:

J J Shaw (solicitor) for the applicant
M H Hindman for the respondent

SOLICITORS:

Winchester Young + Maddern for the applicant
McCullough Robertson for the respondent

HIS HONOUR:  This is an application to set aside a regularly entered default judgment entered by the plaintiff bank against the second defendant, a guarantor of a company called Fitzroy Island Holdings Pty Ltd.  The bank sued the applicant, among others, on guarantees and duly obtained judgment.  The claim was filed on the 18th August last year.  The statement of claim was delivered with the claim.  The default judgment was entered on the 29th September and the application to set it aside was made on the 23rd December.  I do not think there has been any undue delay since the 23rd December.

The applicant accepts that it must provide an explanation for its failure to file a defence, provide an explanation for its failure to apply promptly to set aside the default judgment and demonstrate a defence on the merits.  The evidence relied upon for all three propositions is essentially that the plaintiff, by unnamed employees, represented to Mr Lawry, the sole director of the applicant, that the bank would not seek to enforce the guarantee until the various securities held by it from the principal debtor were sold and the shortfall, if any, was determined.

The evidence before me suggests that the value of the securities exceeds the amount of the indebtedness.  Mr Lawry has deposed in a short affidavit that that representation was made and in a draft defence, which he has sworn is accurate, the applicant has pleaded that on or about the 21st April 2009 the plaintiff, again by unnamed employees, said it would not take any steps to execute the corporate guarantee of the second defendant until the sale had been completed and any shortfall or surplus was determined.

Mr Lawry deposes that he mistakenly believed that despite a statutory demand being issued the bank would comply with its previous representation, that is the representation to which I have referred.  Mr Lawry deposes that it was not until immediately before the hearing of a winding up application (I presume one made against the present applicant) that he realised that the bank intended to proceed with winding up the applicant and he, therefore, placed it into administration.

It is all a highly improbable story.  It is lacking in any particularity and there is no explanation of why Mr Lawry did not cause the applicant to file a defence when he must have realised that by bringing the claim the bank was reneging on the statement which had been made to him.

Likewise, when he found out that judgment had been entered there was again further delay.  It is impossible to accept that this was the result of the statement made back in April.  Perhaps there were other statements made.  That is consistent with the way the material is presented.  However, because of the vagueness of Mr Lawry's evidence, it is impossible to know. 

It has long been established that material in support of an application to set aside a judgment must condescend to particulars.  There is no convincing particularity in the evidence given about the reasons for not filing a defence, for delay in bringing the present application and in respect of the defence on the merits.  The whole thing seems quite improbable.

The onus is on the applicant to show the three matters to which I have referred.  The evidence does not satisfy me on any of them.  It should, therefore, be dismissed.

...

There will be an order in accordance with the draft initialled by me and placed with the papers.

-----