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…

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: [2010] QDC 429
Decision Date: 27/10/2010

CaseChat Overview and Summary

In the case of D J Ryan Nominees Pty Ltd v Ellett, the plaintiff sought immediate judgment against the defendant for failing to file a new defence as previously ordered. The plaintiff had subsequently filed and served an amended statement of claim. The court was required to determine whether the plaintiff's technical deficiencies in their application, which failed to state grounds, should prevent the granting of summary judgment, and if so, whether a guillotine order should be made.

The court acknowledged the plaintiff's non-compliance with the Uniform Civil Procedure Rules, particularly r 373(4)(a), which requires the application to allege the grounds upon which it is based. However, the court observed that the defendant had been given notice of the plaintiff's intention to file an amended application and had not responded to the previous order of the court. Despite the plaintiff's failure to comply with procedural rules, the court decided to make a guillotine order, which provided the defendant with an opportunity to bring themselves into compliance with the orders of the court. The court considered it inappropriate to punish the defendant by entering judgment in terms of an amended statement of claim which was different from the original one to which the defendant was ordered to respond.

The court ultimately made a guillotine order, which stipulated that if the defendant did not file a defence within 14 days of the service of the court's order, the plaintiff would be entitled to judgment in terms of the amended application. This order allowed the defendant a final opportunity to comply with the court's orders and provided a fair resolution to the case, taking into account the procedural errors made by the plaintiff and the defendant's failure to respond to the previous order.

Orders