Commonwealth Bank of Australia v Powell

[2013] QDC 89

[2013] QDC 89

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1631 of 2012

COMMONWEALTH BANK OF AUSTRALIA	Applicant
and
CLAYTON BRUCE POWELL AND KYLIE MARIE POWELL	Defendants

BRISBANE

..DATE 30/01/2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules- r290 – default judgment set aside on application of the plaintiff which had obtained it, inconsistently with an agreement with the defendant not to enter judgment if they complied with certain undertakings (as was occurring)

HIS HONOUR:  I will proceed to deal with the matter of
Commonwealth Bank of Australia v Clayton Bruce Powell and
Kylie Marie Powell (1631 of 2012).

This is an application by the plaintiff bank which the
applicant proposes be decided without an oral hearing under
rule 489.  The application is for the setting aside of a
judgment by default entered under rule 290.  That judgment
was entered on the 7th of December 2012 by the registry and is
for an amount of $157,161.82.  Costs apparently are costs
on top of that.

The judgment was obtained by solicitors acting for the
plaintiff bank and apparently regularly.  The outline of
submissions filed with the present application on the 24th of
January 2013, pursuant to rule 490, indicates and this
is supported by an affidavit of Ms Durcau, a solicitor
employed by the firm - that the plaintiff instructed the
lawyers to file a request for default judgment against the
defendant on the 5th of December 2012.  The solicitors acted
with expedition, obtaining a judgment and advising the
defendants of it on the same day namely, 7th of December 2012.

On the 11th of December 2012 the plaintiff advised the lawyers
that it had entered into an arrangement with the defendants
that it would not enter judgment if certain conditions were
met.  To date, the court is told, the defendants have complied
with the arrangement.  Accordingly, the plaintiff has

instructed the lawyers to have the judgment set aside.

It's unusual indeed to have an application under rule 290 made
by the plaintiff which, quite deliberately it seems, sought
and obtained the judgment.  Nonetheless, unless there is some
good reason why the plaintiff should not take advantage of
rule 290, proper dealing would require that the application
succeed.

I can think of no reason why rule 290 should be read down to
place any difficulty in the way of the plaintiff proceeding as
it now wishes to.  Accordingly, there will be an order in
terms of the initialled draft which the plaintiff has provided.

The only confusing aspect is that that draft document refers
to the setting aside of a default judgment entered on the 31st
of May 2012.  One hopes that use is not being made of some
precedent, the only default judgment in sight would appear
to be the one of 7th of December 2012.

I have taken the liberty of amending the draft order to
reflect that by inserting what I apprehend to be the correct
date.

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