Brookfield v RealEstate Now Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION: 

Brookfield v RealEstate Now Pty Ltd and Another [2021] QDC 95

PARTIES: 

IAN WALTER BROOKFIELD  
(Plaintiff/Applicant)

v
REALESTATE NOW PTY LTD (ACN 153307432)
(First Defendant/Respondent)
AND
MARK WILLIAM MERGARD
(Second Defendant/Respondent)

FILE NO:

868/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

Brisbane District Court

DELIVERED ON:

27 May 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

27 May 2021

JUDGE:

Porter QC DCJ

ORDERS:

1.   The Plaintiff’s Application filed 20 May 2021 be dismissed.

2.   The proceedings be stayed until the resolution of the committal proceedings underway in respect of the Plaintiff/Applicant.

3. After the resolution of those committal proceedings, either party may apply to lift the stay on 21 days’ notice to the other side, such notice to be given in a manner consistent with any extant bail conditions or otherwise in accordance with the Uniform Civil Procedure Rules.

Uniform Civil Procedure Rules 1999 (Qld), rr. 142, 146, 166, 182, 280, 281, Chapter 17

Craven v Globe Valley Pty Ltd [2018] QDC 155

 Appearances:

I. Brookfield appeared in person for the Plaintiff/Applicant

M. Mergard appeared in person with leave for the First Defendant/Respondent and Second Defendant/Respondent  

1. The parties in this matter are self-represented. Although, it is not their fault; they are plainly struggling to conduct the litigation in a manner consistent with the law and the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). This application provides an example. The plaintiff’s application is in terms which are somewhat ambiguous. Doing the best I can, it seems to seek default judgment for the plaintiff’s claim against the defendants because of failure to serve the defence and, I thought at first, default judgment on the counter-claim brought by the defendants against third parties for the same reason. Whether that was exactly what the plaintiff, Mr Brookfield, was pursuing in respect of the counterclaim, he did invoke Rule 182 UCPR in his application. That Rule provides for the exclusion of a counter-claim. Ordinarily, a counter-claim is heard as part of the proceedings in which it is brought, but the Court has power under Rule 182 to exclude it from the principal proceedings if the Court considers it appropriate. Although, again, the plaintiff appeared to seek that relief because the counter-claim had not been served on the parties who he understood were the parties to the counter-claim.

2. Looking at the matter from the perspective of the defence, the difficulty the plaintiff faces is that the entitlement to default judgment on a claim and statement of claim only arises if a defence has not been filed: see Rule 281. The defence has been filed. If it is correct the defence has not been served, that is a failure to comply with the Rules: see Rule 142. Failure to comply with the Rules can, in theory, lead to dismissal for default in compliance with the Rules under Rule 280, in the specific circumstances identified in that Rule, and under broader Rules about the conduct of proceedings. However, no such…