Capital Finance Australia Ltd v Edwards

SUPREME COURT OF QUEENSLAND

CITATION:

Capital Finance Australia Limited  v  Edwards & others [2011] QSC 104

PARTIES:

Capital Finance Australia Limited ACN 069 663 136

(plaintiff/ respondent)

v

Christopher Malcolm Edwards

(first defendant/ applicant)

and

Lawrence Paul Robson

(second defendant)

and

Christopher Paul Hawkins

(third defendant/ applicant)

and

Moonbrook Holdings Pty Ltd ACN 089 494 673

(fourth defendant)

and

Great Northern Developments Pty Ltd ACN 094 805 286

(fifth defendant)

and

Clarence Road Project Pty Ltd ACN 099 686 709

(sixth defendant)

FILE NO/S:

BS 13114 of 2010

DIVISION:

Trial Division

PROCEEDING:

Setting Aside Judgment /Order

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2011

JUDGE:

Boddice J

ORDER:

The application is refused

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT – IN GENERAL – where applicant made application to set aside a default judgment – whether judgment was irregularly entered – circumstances in which rule 290 of the Uniform Civil Procedure Rules permits a default judgment to be amended – whether defence on merits shown

Uniform Civil Procedure Rules1999 (Qld), r 290

Anson v Trump (1998) 1 WLR 1404

Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52

Cusack v de Angelis [2008] 1 QdR 344

Hughes v Justin [1894] 1 QB 667

National Mutual Life Association of Australasia Limited v Opie, White J, Supreme Court of Western Australia, 6 December 1994.

Pollack v National Australia Bank [2002] FCA 237

Ward v National Bank of New Zealand (1883) 8 App Cas 755

COUNSEL:

Peden, J for the applicants/defendants

Atkinson, D for the respondent/plaintiff

SOLICITORS:

Frews Solicitors for the applicants/defendants

Hopgood Ganim for the respondent/plaintiff

Overview

1. The first and third defendants (“the applicants”) apply, pursuant to r 290, UCPR, to set aside default judgments obtained on 28 February 2011, on the grounds that:

(a)        The judgments entered were irregular; and

(b) Irrespective of whether they were irregularly entered, they have a prima facie defence to the claim and have provided an explanation as to why they did not file defences within the time prescribed by the UCPR.

Background

1. The plaintiff (“the respondent”) commenced proceedings against six of seven guarantors of loans it advanced to Discovery Beach Project Pty Ltd, the joint venture developer of the Surfair beachside development at the Sunshine Coast.

1. On 20 December 2002, the respondent lent $3 million to Discovery Beach Project Pty Ltd.  On the same day, the fourth and fifth defendants executed Deeds of guarantees in favour of the respondent in relation to that loan. 

1. On or about 19 May 2003, the first, second and third defendants, together with Derek William McCartney, executed Deeds of guarantee in favour of the respondent in respect of the loan amount.  These guarantees were later varied so that the loan amount was increased, and the facility was repayable on or before 23 August 2009. 

1. The facility was not repaid by 23 August 2009.  On…