D J Ryan Nominees Pty Ltd v Ellett

[2010] QDC 429

[2010] QDC 429

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1764 of 2009

D J RYAN NOMINEES PTY LTD	Plaintiff
and
JASON CHARLES ELLETT AND ANOTHER	Defendant

BRISBANE

..DATE 27/10/2010

ORDER

CATCHWORDS
Uniform Civil Procedure Rules, r 292, r 374

Plaintiff seeks immediate judgment against delinquent defendant who failed to file a new defence as ordered - plaintiff had subsequently filed and served an amended statement of claim - technical deficiencies in application as filed, which failed to state grounds - whether summary judgment avoidable - "guillotine order" made
 

HIS HONOUR: The court makes an order in terms of the initialled draft. It is a guillotine order which offers the delinquent defendant a further opportunity to bring himself into compliance with his obligations under the UCPR and orders of the court made earlier in the proceeding.

The application is based on r 374 UCPR and non-compliance by the defendant with Judge Noud's order of 21st of January 2010, whereby the defence was struck out and the defendant was ordered to file and serve an amended defence within 14 days from the date of service of the order upon him. It's of interest that his Honour awarded costs to the plaintiff on an indemnity basis.

There has been no response by the defendant to Judge Noud's order. 

...

HIS HONOUR:  Service is established by Mr Rafiei's affidavit filed the 13th of October 2010, paragraph 3.  Non-compliance with Judge Noud's order is thus established, providing a technical possibility of judgment against the defendant for the substantial amount claimed pursuant to a lease under sub-r (5)(a). 

A difficulty for the application, which Mr Rafiei has identified since the filing of it, is that there was no compliance with r 373(4)(a) which requires the application to allege the grounds on which it's based.  An amended application attending to the deficiency has been filed pursuant to leave granted this morning.

The defendant was advised of the plaintiff's intention to file an amended application at a time which is unclear to me from the print-out of e-mails sent to him by use inter alia, of an e-mail address indicated in Judge Noud's separate order, also of the 21st of January, giving solicitors on the record for the defendant leave to withdraw. 

The e-mail is at page 192 of the exhibit book forming part of Mr Rafiei's affidavit sworn today and the subject of leave to read and file.  It would appear to have gone last Monday the 25th of October at 6.31 p.m. or, more likely, last Tuesday at 4.50 p.m. - being yesterday evening.  That falls far short in either case of the two business days referred to in
r 374(4)(c).

That is one factor justifying the reluctance which the court would have anyway to enter judgment against a delinquent defendant. It had always been my view that while a delinquent plaintiff could hardly complain if judgment against him is entered under r 374, it is a very different thing for the court to contemplate a judgment which may or may not fit comfortably with the parties’ rights and the interests of justice against a delinquent defendant for what may be a very large sum of money.

Other special circumstances of this case include that the plaintiff has since Judge Noud's order amended the claim, in fact, by reducing the amount of it.  The amended claim was filed on the 4th of August 2010.

It would be inappropriate now, in my view, to punish the defendant in the way the principal relief which Mr Rafiei tenaciously pressed for would, by entering judgment in terms of an amended statement of claim which is different from the original one to which Judge Noud ordered a response. 

There's a further issue.  The amended application, as indeed did the original filed on the 13th of October 2010, seeks interest in separate amounts, the first of which is $2,139.90 in paragraph 1(b) and "further interest in the sum of $9,852.96 from 26 May 2009 to 6 October 2010 calculated at the rate prescribed by the lease" pursuant to paragraph 1(c).

It also seeks costs in the amount of $20,253.90 pursuant to cl 17 of the lease in paragraph 1(e), and under paragraph (f) further costs on an indemnity basis which it was said would be provided at or before the hearing of the application. 

I expressed concern at the escalation of the interest and costs amounts expressed to be sought in the short period since the 4th of August 2010 when the amended claim sought in paragraph 2 and by way of reduction from what was there before, interest of $1,824.02 and in paragraph 3, "further interest from 26 May 2009."

In paragraph 4, it sought costs of $1,114.55 pursuant to cl 17 of the lease and in paragraph 5, "further or other costs on an indemnity basis."

By the 4th of August 2010, what the plaintiff really wished to claim for interest and costs was vastly in excess of what had been indicated.  In my thinking, this was a factor which the court ought to take into account in determining whether or not to exercise a discretion to act punitively by entering judgment against a delinquent defendant.

There's an element of ambush, in effect, concealing from the defendant the true extent of claims until this month.  For those reasons I'm not prepared to grant the plaintiff the judgment which it seeks notwithstanding that if considerations of merits and the like are entertained, the defendant's prospects appear to be sufficiently hopeless to justify a successful application for summary judgment under rule 292. 

It's not possible, in my view, for the plaintiff to convert the application expressed to be made under r 374 to one under r 292 without amendment and re-service. Mr Rafiei, I took to indicate, that summary judgment couldn't be sought because there was no defence. Rule 292 requires not a defence but a notice of intention to defend to have been filed. The defendant has filed such a notice and Judge Noud didn't strike it out. Indeed, as I understand the Rules, it wouldn't have been open to him to do so.

Mr Rafiei says that, given that there's no standing defence, the court would not be able for purposes of r 292 to determine whether the defendant had any real prospect of successfully defending the claim. I differ from him there.

As a matter of history, the court has the original defence which Judge Noud, justifiably, struck out.  It appears to be no more than a delaying document which in a score or more of paragraphs simply refers to the defendant undertaking reasonable inquiries and being presently unable to respond to the allegation.

This is a defendant who, notwithstanding ample opportunity, has had nothing to say for himself.  While those considerations don't induce me to grant judgment today, they comfort me in making a guillotine order, the effect of which is that if there's no defence filed within 14 days of service of the court's order today, then the plaintiff will be entitled to judgment in terms of the amended application.

The court makes an order in terms of the initialled draft.

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