Crane Distribution Ltd v Brown

SUPREME COURT OF QUEENSLAND

CITATION:

Crane Distribution Ltd v Brown [2011] QSC 90

PARTIES:

CRANE DISTRIBUTION LIMITED
ACN 000 003 832
(plaintiff/applicant)
v
DARK STAR TWO PTY LTD (in liquidation)
ACN 124 230 842
(first defendant)
DAVID GLENN BROWN
(second defendant/respondent)

FILE NO:

BS 785 of 2009

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

19 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Fryberg J

ORDERS:

Application dismissed

CATCHWORDS:

Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Default of pleading

Procedure – Costs – Nature of proceedings – Damages recovered small – Action which should have been brought in inferior court      

Property Law Act 1974 (Qld), s 99
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24, r 282, r 283, r 288, r 378, r 491, r 496, r 694, r 702, r 703

Adelaide Bank Ltd v Teni[2005] QSC 40     
Wallace v Witan Investments (Qld) Pty Ltd, Unreported, 12 March 1986, no 3281/84, Master Weld (SCL # 86/070).

SOLICITORS:

Holman Webb Lawyers for the plaintiff/applicant
Ex parte

1. FRYBERG J:  This is an application on the papers[1] for default judgment under r 288 of the Uniform Civil Procedure Rules.

   [1]See rule 489.

History

1. The plaintiff is a seller of plumbing supplies.  The first defendant carried on a construction business and the second defendant was one of its directors (or perhaps the sole director).  In March 2007, the plaintiff agreed to sell goods to the first defendant on credit.  The plaintiff alleges in the present application that at that time the second defendant gave the plaintiff a guarantee in respect of the first defendant.  It filed an affidavit made by its Queensland credit manager supporting the application and exhibiting the guarantee.  It also filed an affidavit by a solicitor in support of the application.  In the application it claims $957.10 for interest calculated to 27 August 2009 and $5,188.02 for costs.

1. Rule 288 provides:

“288 Judgment by default—other claims

(1)This rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283, 284, 285 or 286.

(2)The plaintiff may apply to the court for a judgment.

(3)On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.”

The plaintiff does not suggest that the court has any other relevant power, inherent or statutory, to give default judgment in the circumstances of this case.

1. Sub-rule (3) directs attention to the only pleading in the matter, the statement of claim.  I shall summarise it as far as possible.  The first three paragraphs identify the parties.  Paragraph 4 alleges that on 27 March 2007 the first defendant entered into an identified agreement with the plaintiff.  Three paragraphs of that agreement are then set out in para 5 of the statement of claim.  Only the second of those paragraphs is presently relevant: “2. Whether or not credit…