Cusack v De Angelis

Case [2007] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

Cusack v De Angelis [2007] QCA 313

PARTIES:

MARJORIE JOYCE CUSACK
(plaintiff/respondent)
v
AGOSTINO DE ANGELIS
(defendant/appellant)

FILE NO/S:

Appeal No 3270 of 2007
SC No 9479 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2007

JUDGES:

McMurdo P, Muir JA and Lyons J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT – IN GENERAL – where appellant made application before a trial division judge to set aside a default judgment – where the trial judge dismissed the application and varied the default judgment by changing the amounts of principal and interest – whether judgment was irregularly entered – discussion of circumstances in which rule 290 of the Uniform Civil Procedure Rules permits a default judgment to be amended

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 290

Anlaby v Praetorius (1888) 20 QBD 764 (CA), distinguished
Anson v Trump (1998) 1 WLR 1404, compared
Armitage v Parsons [1907] 2 KB 410, cited
Beil v Pacific View (Qld) Pty Ltd; sub nom Beil v Mansell(No 2) [2006] QSC 199; [2006] 2 Qd R 499, cited
Bolt & Nut Co (Tipton) Ltd v Rowlands, Nicholls & Co Ltd [1964] 2 QB 10, cited
Building Guarantee & Discount Co Ltd v Dolejsi [1967] VR 764, cited
Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530, distinguished
Faircharm Investments Ltd v Citibank International PLC [1998] EWCA Civ 171, cited
Frisch v Bowman [1928] St R Qd 242, cited
Hodges v Callaghan (2 CB) (NS) 306, cited
Hughes v Justin [1894] 1 QB 667, distinguished
Kwong, Loong & Co v Kwong Yue Loong [1907] QWN 65, distinguished
Luka Brewery v Grundmann [1985] 2 Qd R 204, cited
Muir v Jenks [1913] 2 KB 412 (CA), applied
Re Gasbourne Pty Ltd [1984] VR 801, cited
Ringrow v BP (Aust) (2005) 224 CLR 656, cited
The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463, cited
Thomas v Deputy Commissioner of Taxation [2005] QCA 85, cited
Vosmaer v Spinks [1964] QWN 36, cited

COUNSEL:

DJ Campbell SC, with A Christie, for the appellant

J W Peden for the respondent

SOLICITORS:

Aitken Craig Lawyers for the appellant
Flower & Hart for the respondent

  1. McMURDO P:  The appellant, Mr De Angelis, guaranteed a $300,000 loan made to a company owned and controlled by him, Rateki Pty Ltd.   The company defaulted in October 2006.  Under the loan agreement the interest rate was 30 per cent and the default rate 40 per cent.  Ms Cusack required Mr De Angelis to make immediate payment of the $300,000 loan sum together with interest.  Mr De…

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AGLC
Cusack v De Angelis [2007] QCA 313
Case
[2007] QCA 313
Decision Date

CaseChat Overview and Summary

The appeal was brought by Cusack against De Angelis, with the dispute concerning the setting aside of a default judgment. The case was heard in the Supreme Court of New South Wales. Cusack, the appellant, sought to overturn a default judgment entered against him by the trial division judge. The trial judge dismissed Cusack's application and, in addition, altered the amounts of principal and interest in the judgment. Cusack's appeal challenged the legality of the trial judge's decision, particularly the circumstances under which the default judgment was amended.

The central legal issue before the court was whether the judgment was irregularly entered and if the trial judge had the authority to amend it under rule 290 of the Uniform Civil Procedure Rules. The court needed to determine whether the trial judge's actions were justified and in accordance with the legal standards governing the amendment of judgments. The court considered the principles established in previous case law regarding the circumstances that warrant the amendment of a default judgment.

In examining the matter, the court concluded that the trial judge did not exceed his jurisdiction in varying the default judgment. The court found that the amendment was permissible under rule 290, given the specific circumstances presented. The court further determined that the trial judge's decision to dismiss the application to set aside the judgment was correct and that the amendment was appropriately made. Consequently, the court upheld the trial judge's decision and dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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