Bilic and Bilic v Nicholls (No. 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Bilic & Bilic (No. 2) v Nicholls & Ors [2013] QDC 298

PARTIES:

DRAGAN BILIC and VESNA BILIC
(plaintiffs/respondents)

v

ANDREW NICHOLLS
(first defendant)

and

SHARYN LEE NICHOLLS
(second defendant)

and

JIMI LEE
(third defendant/applicant)

FILE NO/S:

22/2011

DIVISION:

Civil

PROCEEDING:

Application to set aside judgment against third defendant

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

29 November 2013

DELIVERED AT:

Beenleigh

HEARING DATE:

1 November 2013

JUDGE:

Dearden DCJ

ORDER:

1.          Application to set aside judgment against the third defendant granted.

2.          Judgment against the third defendant, entered at the Beenleigh District Court on 17 May 2013, set aside.

CATCHWORDS:

PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES – where the applicant has applied for default judgment to be set aside – where the default judgment was irregularly entered– whether the judgment by default which was entered against the third defendant in District Court Proceeding no. 22/2011 should be set aside pursuant to UCPR r 290 – whether the consequential orders should be set aside.

LEGISLATION:

Uniform Civil ProcedureRules rr. 476(4). 986(2), 990

CASES:

Bilic & Bilic v Nicholls & Ors [2013] QDC 110

Capital Finance Australia Ltd v Edwards & Ors [2011] QSC 104

Cusack v De Angelis [2007] QCA 313

Embrey v Smart & Anor [2013] QSC 241

COUNSEL:

MJ Byrne for the plaintiffs/respondents

BA Hall for the third defendant/applicant

SOLICITORS:

Pearson & Associates for the plaintiffs/respondents

Robinson Locke Litigation Lawyers for the third defendant/applicant

Introduction

1. The third defendant, Jimi Lee, seeks to set aside a judgment delivered in this court on 17 May 2013 insofar as it relates to the third defendant.

Background

1. The third defendant was the registered owner of a property at 18 Charlane Street, Underwood as of 24 December 2003.[1]  On 18 August 2005 the third defendant sold this property to the second defendant, Sharon Lee Nicholls.[2]  The contract had a 25 year settlement date. The third defendant was not present in Australia at all relevant times and the property was managed by Kim Willis (with correspondence also being sent by his wife Sandra Willis).[3]

   [1]Exhibit JL1, affidavit of Jimi Lee, affirmed 20 September 2013.

   [2]Contract attached to notice of intention to defend (document 5).

   [3]Affidavit of Jimi Lee, affirmed 20 September 2013, para 3.

1. After the matters giving rise to the proceedings occurred on various dates during 2010,[4] a Claim, and Statement of Claim was filed in the Beenleigh District Court on 16 March 2011. 

   [4]Statement of claim paras 5-7.

1. On 5 May 2011, Sandra Willis filed a Notice of Intention to defend[5] which purported to provide the third defendant’s “residential or business address” as:

   [5]Document 5.

“c/- Cashflow Properties
T A
Home Buy Express
PO Box 1040
Aspley 4034
Ph [phone]”

and further under the side marking “If the defendant has no solicitor: defendant’s address for service: ‘c/- Cashflow Properties P/L trading as Home Buy Express [phone]’.”

1. This document was signed “S Willis” and gave the description “Agents representative of Home…