Body Corporate for St Tropez South v Q Tech Water Proofing Pty Ltd

[2013] QDC 65

[2013] QDC 65

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 516 of 2010

BODY CORPORATE FOR ST TROPEZ SOUTH (COMMUNITY TITLE SCHEME NUMBER 11844)	Plaintiff
and
Q TECH WATER PROOFING PTY LTD AND ANOTHER	Defendants

SOUTHPORT

..DATE 25/03/2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules, r225, 284, 374, 507 and 992 - Plaintiff seeks judgment for damages to be assessed based on defendant’s failure to make disclosure no previously ordered - defendants solicitors (who had filed the defence) had been granted leave to withdraw - service of plaintiff’s application using defendant’s address for service apparently failed - conditional order for judgment for damages to be assessed - offered the absent defendants an opportunity to make this defence good in the circumstances.

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It has the effect of giving the plaintiff judgment against the defendants for damages to be assessed.

What was the rule that you referred to about assessment damages? I thought it was in your outline.

MS COX:  I'm sorry, your Honour, I've only got the rule in my submissions about the court having to say which court conducted the - it may be rule 507 I'm sorry, no, your Honour, 507, just relates to what a conditional order to be assessed must state.

HIS HONOUR:  We'll see if we can find it together anyway.

MS COX:  I'm not sure I can assist you further.

HIS HONOUR:  Maybe it's just rule 284. 

The judgment is sought under rule 225, alternatively under rule 374 on the same basis, namely the defendant's failure to comply in a timely way with orders requiring disclosure made by another Judge on the 15th of February.

On that day, lawyers who had been representing the defendants since January, 2011, when the defence was filed, obtained leave to withdraw and costs against the defendants. 

No particular directions were given by the court as to how service ought to be effected which might've given the plaintiff a reliable address for service. 

In the circumstances by rule 992, the defendants' residential business address became the address for service unless other things happened which have not happened.

The plaintiff's solicitors have used such addresses as are known to them and, in respect of the first defendant, have also served this application at the registered office. 

Has everything that you have attempted to serve by post come back?

MS COX:  Except for the one that we sent to 7 Lorne Court, your Honour.  I refer to it in my affidavit.  We actually got a telephone call, my secretary got a telephone call from a gentleman that said he resided at 7 Lorne Court and she put him on hold to come and get some instructions as to what she should tell him to do with the document and when she went back to the phone he had hung up.

HIS HONOUR:  Right.

MS COX:  So I can only assume from that, that he was not the defendants.

HIS HONOUR:  All right.  I would like that exchange transcribed.  I am leading to making the observation that for the purposes of getting today's order set aside, if that is what the defendants should decide in the future they want to do, the application may turn out to be one made without notice for purposes of sub-rule (8) (a) in which event the defendants, on the basis of not being present today, may apply to a single judge to have the order set aside rather than being obliged to challenge it on appeal.

The same principle which enables an unrepresented party to apply for the changing of an order made in his absence would be available in respect of any order for judgment made under rule 225.

I interpolate here that there is another arguable deficiency in the application which has been the subject of some discussion in that it does not quote the language of rule 374, sub-rule (3), which contemplates that the application “require the party has not complied to show cause why an order should not be made against it".

The application fails to do that.  However, in my view, it sufficiently clearly indicates to the defendants what's required by the reference to rule 374.  Care has also been taken to include the material required to be there by sub‑rule (4).

The claim, now set out in an amended statement of claim, is for damages sought consequent upon the alleged failure of a membrane installed on the roof of the plaintiff's premises to render it waterproof.  The work was done and paid for around 2006.

The defence asserts that the plaintiff has not properly maintained the membrane installed, but there is no evidence presented to justify that.

The application seeks judgment for the full amount of the claim.  However, the draft order submitted to the court today seeks judgment for damages to be assessed.

In the circumstances, I consider that a more acceptable approach. My own practice, and that of the courts generally in my view, has been to be extremely careful about entering judgment against a defendant, who is in default in some respect, for the full amount of a claim which, if investigated, may be totally untenable or worth much less than the plaintiff thinks.

The defendants, if today's judgment stands, will have the opportunity, when damages are assessed, to provide evidence, if any is available, that the damages they ought to pay are not as extensive as what the plaintiff would like.

On what basis is this judgment pronounced? It is the kind of judgment contemplated by rule 284, which does not directly apply in the circumstances because the defendants have embarked on defending the claim in court.

However, the court is entitled, under rule 374 (5), to make a wide range of orders, including giving judgment against the party served or making "another order".  I am in no doubt that the same flexibility applies under rule 225. 

The court has indulged the plaintiff by granting a fixed date for the assessment of damages as part of the order. That will save costs

That's it.  Thanks very much, Miss Cox.

MS COX:  Thank you.

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