Baycrown Pty Ltd v Hutchinson

DISTRICT COURT OF QUEENSLAND

CITATION:

Baycrown Pty Ltd v Hutchinson & Anor [2002] QDC 337

PARTIES:

BAYCROWN PTY LTD

Plaintiff

and

KEVIN GEORGE HUTCHINSON

First Defendant  

and

WALTER PATTERSON

Second Defendant

FILE NO/S:

444/2002

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Southport

DELIVERED ON:

12 September 2002

DELIVERED AT:

Southport

HEARING DATE:

16 August 2002

JUDGE:

Alan Wilson SC  DCJ

ORDER:

Default judgment entered by the plaintiff against the first defendant on 16 July 2002, set aside

CATCHWORDS:

DEFAULT JUDGMENT – SETTING ASIDE – whether default judgment irregularly entered – whether applicant to set aside judgment entered irregularly must show a defence on the merits

DEFAULT JUDGMENT – SETTING ASIDE – SECURITY FROM APPLICANT DEFENDANT – whether applicant who successfully applies to set aside a default judgment entered irregularly, but who has not shown a defence on the merits, should be obliged to provide security as a condition of the setting aside

Cases considered:

Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19 Daly v  Silley (1960) VR 353

Bruce v Odhams Press Ltd (1936) 1 KB 697 (CA)

Conners v Acheron Pty Ltd (No. 2) [1996] 1 Qd R 243
Dibeek Holdings Pty Ltd v Notaras (1998) 143 FLR 132
Hughes v Justin (1894) 1 QB 667

COUNSEL:

Mr S J English for the applicant first defendant 
Mr Woods for the respondent plaintiff

SOLICITORS:

Baker Johnson for the applicant first defendant 
McLaughlins for the respondent plaintiff

1. The first defendant applied to set aside a default judgment entered against him by the plaintiff on 16 July 2002 for $168,318.28 (inclusive of interest, and costs).  The issues that arise are, firstly, whether the default judgment can or should be set aside in circumstances where the first defendant has not attempted to establish a defence on the merits; and secondly whether, if the judgment is set aside, the first defendant should be obliged to provide security as a condition for the setting aside.

Background

1. As the plaintiff’s statement of claim[1] and an affidavit of the plaintiff’s director, Thomas Van Asperen[2] and an affidavit of the first defendant’s solicitor, Mark Victor Guest[3] show the plaintiff company and Surfshell Pty Ltd entered into an agreement in February 2001 whereby, inter alia, the plaintiff loaned Surfshell the sum of $250,000.00.  By a separate deed signed on the same day the first and second defendants guaranteed repayment of that debt on or before 20 May 2002.

[1]  Filed 4 June 2002

[2]  Filed by leave 16 August 2002, and read only as to paragraphs 1 & 2

[3]  Filed 13 August 2002

1. The first defendant was served with the claim and statement of claim on 11 June 2002.  On 19 June his solicitors wrote to McLaughlins, who act for the plaintiff, asking that their interest be noted in the matter and that no steps prejudicial to their client be taken without a communication to them.  Otherwise the letter simply indicated they expected to have instructions in the foreseeable future and…