Crayvine Pty Ltd v. Dalison Pty Ltd - [2009] QDC 253

[2009] QDC 253

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 868 of 2009

CRAYVINE PTY LTD (ACN 011 018 652)

Plaintiff

and

DALISON PTY LTD (ACN 010 365 554)

and

GAVIN JOHN WRIGHT

Defendant

BRISBANE

..DATE 26/06/2009

JUDGMENT

CATCHWORDS: District Court of Queensland Act 1967 s 68, s 69 - Uniform Civil Procedure rules r 115, r 283, r 288

Whether court had jurisdiction to declare existence of a caveatable interest – defendant guarantor charged “all property both equitable and legal” and authorised execution of consent to registration of a caveat over any real property – default judgment conditioned upon proof that defendant’s solicitors who agreed to accept service had received relevant documents

HIS HONOUR: This is Crayvine -v- Dalison Pty Limited, 868 of 2009. There are no appearances. It's an application which the plaintiff, who filed it on the 2nd of May 2009, requested be dealt with without an oral hearing. The rules and practice for such an application to be so dealt with have been complied with.

I ask myself whether the solicitors appreciated the complexity of the application. It's complex, in my view, in any event. Although, in substance, the application is going to be acceded to, that outcome occurs only after a reasonable amount of research which the Court has had to undertake on its own initiative to satisfy itself in respect of aspects which might well have been covered in the written submission which was supplied with the application. It is brought ex parte and seeks judgment in default of the filing of a notice of intention to defend by the defendants.

The relevant rule so far as the first defendant is concerned is Rule 283, the principal relief sought being a money judgment for $44,697.30, money due and owing for goods and services supplied. Interest and costs are sought as well. The relevant rule so far as the second defendant is concerned is Rule 288.

The relief sought against the second defendant, who was guarantor of the first defendant's obligations to the plaintiff, is: "a declaration that the plaintiff as caveator has a caveatable interest in the property as claimed in caveat 712202032 lodged by the plaintiff and registered over the property." That caveat does not appear anywhere in the material before me, though the lodging of it is pleaded in the statement of claim. Nor is there any title search before me, although the second defendant's half ownership with another person, who would appear to be his partner, as tenant in common, is pleaded.

I think the Court ought to take some care to ensure that if relief is granted, nothing is done inadvertently which might affect the rights of non-parties. So far as the matter of title is concerned, the requirement for making the order is that the property be registered in the second defendant's name. Particularly given that this application is ex parte, the Court has to take care that proper service of the claim and statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QDC 253
Decision Date: 26 June 2009

CaseChat Overview and Summary

Crayvine Pty Ltd sought a default judgment against Dalison Pty Ltd and Gavin John Wright, the latter being a guarantor of the former's debts. The application was heard ex parte in the absence of the defendants, with the plaintiff submitting that the court had jurisdiction to declare the existence of a caveatable interest and grant a default judgment. The primary relief sought was a money judgment for $44,697.30 for goods and services supplied by the plaintiff to Dalison Pty Ltd, along with interest and costs. The court had to decide whether it had jurisdiction to make orders about caveats and if there was a caveatable interest. The court found that the guarantee document provided the plaintiff with a security over the guarantor's property, sufficient to support the proposition that the charge might be good. The court also determined that its jurisdiction to make orders about caveats was derived from section 69 of the District Court of Queensland Act 1967, which conferred a wide ancillary jurisdiction on the District Court where there was a section 68 claim properly before the court. The court granted the application and ordered that judgment by default be awarded in favour of the plaintiff, including a declaration that the plaintiff had a caveatable interest, a money judgment for $34,697.30, and interest and costs. The court's order was subject to the filing of an affidavit establishing receipt by the defendants' solicitors of the claim and statement of claim before the filing of the plaintiff's application. The court also allowed the plaintiff to claim additional costs of $260 for entering judgment in default, as the defendants had been given proper notice of the claims in that regard.

Orders