Cambio Group Pty Ltd v Fanengine Pty Ltd (No 2)

DISTRICT COURT OF QUEENSLAND

CITATION:

Cambio Group Pty Ltd v Fanengine Pty Ltd & Ors (No 2) [2014] QDC 116

PARTIES:

CAMBIO GROUP PTY LIMITED
(plaintiff)

v

FANENGINE PTY LTD
(first defendant)

and

BRETT JOHN MCCALLUM
(second defendant)

and

DESMOND GEORGE SELVEWRIGHT
(third defendant)

FILE NO/S:

384/2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

27 May 2014 Ex tempore

DELIVERED AT:

Southport

HEARING DATE:

21 May 2014

JUDGE:

Reid DCJ

ORDER:

1. The application pursuant to rule 292 of the Uniform Civil Procedure Rules (1999) for summary judgment against the first and third defendants is dismissed.

2.   The first and third defendants file and serve an amended Defence and Counterclaim, if any, no later than 4.00 pm on 13 June 2014.

3.   The Plaintiff file and serve the Reply and any Defence to any Counterclaim no later than 4.00pm on 27 June 2014.

4.   Each party give disclosure no later than 4.00pm on 11 July 2014.

5.   Any party may make application to the Court for further directions upon giving the other parties two days notice in writing.

6.   Costs be reserved.

COUNSEL:

Mr C. Garlick for the first and third defendants

SOLICITORS:

Rose Litigation for the plaintiff

Hannay Lawyers for the first and third defendants

INTRODUCTION

1. This is an application by the plaintiff pursuant to r. 292 of the Uniform Civil Procedure Rules (1999) (‘UCPR’) for summary judgment against the first and third defendants in the amount of $187,089, together with interest pursuant to the terms of a lease and guarantee, and for costs. 

1. The matter first came before me on 12 May 2014 when the second defendant did not appear.  I entered judgment against him for the sum claimed, together with interest and costs. 

1. The third defendant appeared in person, on his own behalf and on behalf of the first defendant, a company of which he is a director.  The matter was adjourned to 21 May 2014 and I made consequential orders in respect of costs thrown away by the adjournment. 

1. When the matter came before me on 21 May 2014, the first and third defendants had legal representation, but it appeared that the material which had been filed on their behalf had been prepared by the third defendant himself. In particular, the third defendant had sworn an affidavit and filed what was described as a defence, but was clearly an amended defence although it did not comply with the rules in respect of amended pleadings.

BACKGROUND:

1. The plaintiff initiated proceedings by its claim and statement of claim filed 27 November 2013.  Both the second and third defendants are said to be directors of the first defendant. 

1. It is alleged that on 28 March 2013 that the plaintiff and the first defendant entered into a lease of premises at Marine Parade, Southport.  The lease was for the period from 8 April 2013 to 28 February 2015.  Annual base rental was $91,700 per annum plus GST, including outgoings.  There was provision for variation thereof during…