Cook v D A Manufacturing Co Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Cook v D A Manufacturing Co P/L & Anor [2004] QCA 52

PARTIES:

GRAHAM CLIFFORD COOK
(plaintiff/respondent)
v
D A MANUFACTURING CO PTY LTD
ACN 010 219 717
(first defendant/appellant)
WES MACKNEY
(second defendant)

FILE NO/S:

Appeal No 8106 of 2003
Appeal No 8844 of 2003
SC No 10226 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2004

JUDGES:

de Jersey CJ and McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   In Appeal No 8106 of 2003 – appeal dismissed with costs to be assessed

2.   In Appeal No 8844 of 2003:

(i)Appeal allowed  

(ii)The order appealed from is varied to the extent only of setting aside that part thereof which ordered that the application be dismissed 

(iii) The default judgment dated 6 July 2000 is to be set aside and the appellant given unconditional leave to defend

(iv) The appellant is to file and serve a defence in the proceeding within 28 days of this order

(v)The respondent is to pay the appellant’s costs of the appeal to be assessed 

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – DEFAULT OF APPEARANCE – where respondent obtained judgment against appellant in default of pleading – where appellant not made aware of default judgment until three years later – where respondent granted leave to proceed after three year period – where appellant’s application to have default judgment set aside was refused – whether the granting of leave to proceed should have been made conditional on the default judgment being set aside

Uniform Civil Procedure Rules 1999 (Qld), r 290, r 389

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142, referred to
Evans v Bartlam [1937] AC 473, followed
National Australia Bank Ltd v Singh [1995] 1 Qd R 377; [1993] QCA 469; Appeal No 97 of 1993, 22 October 1993, cited
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, followed
Taylor v Taylor (1978) 143 CLR 1, cited
W R Carpenter Australia Ltd v Ogle [1999] 2 Qd R 327; [1997] QCA 383; Appeal No 5023 of 1996, 28 October 1997, cited

COUNSEL:

K A Barlow for the appellant
R J Clutterbuck for the respondent

SOLICITORS:

Gadens Lawyers for the appellant
Schultz Toomey O’Brien for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA. I agree with the orders proposed by Williams JA, and with his reasons.

1. McPHERSON JA:  I have read and agree with the reasons of Williams JA. In my opinion, the orders, including those relating to costs, should be those proposed in his Honour’s judgment on this appeal.

1. WILLIAMS JA: The court is concerned with…