Day v Bell - [2001] QDC 329

[2010] QDC 517

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2567 of 2010

ROLLONE PTY LTD (ACN 010 829 231)	Plaintiff
and
RUTH MARGARET BYRNE	Defendant

BRISBANE

..DATE 30/11/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 284, r 509, r 687(2)(c)

Where registrar declined to enter default judgement for damages to be assessed, taking the view that the claim was truly for liquidated damages - the plaintiff had paid for repairs to a vehicle in consequence of damage caused by the defendant; so that the extent of damages could be said to be precisely known - held that the claim was not for liquidated damages and that default judgement should have been granted - mode of trial of assessment directed - plaintiff's claim for costs adjourned to assessment - defendant not responsible for registrar's error.

HIS HONOUR: The court makes orders in terms of the initialled draft to the following effect, namely that:

(1) The defendant pay the plaintiff damages to be assessed upon the plaintiff's claim and statement of claim together with interest, and that the value of damages be assessed by the District Court.

(2) Pursuant to rule 509(1) of the UCPR, leave be given for the plaintiff to proceed with the assessment of damages by way of application with evidence in chief to be given by affidavit.

(3) The defendant pay the plaintiff's costs of the proceedings to date, including the application filed 24 November 2010.

(4) The plaintiff's application that the above cost be fixed under rule 687(2)(c) in the amount of $2,257.50 be adjourned for hearing with the assessment.

The plaintiff's claim arises from damage to a Kenworth prime mover in a motor vehicle accident on the Bruce Highway on the afternoon of the 23rd of April 2009.

According to the statement of claim, the defendant drove her vehicle onto the wrong side of the road, causing a collision which damaged the prime mover occasioning the incurring of costs for repair in the amount of $104,376.27.

The statement of claim records the defendant as making payments totalling $1200 in part payment, and claims the balance. That balance is further reduced by a sum of $40 acknowledged to have been paid. Recently, the amount of the claim fluctuates by reason of interest accruing.

The defendant has failed to file a notice of intention to defend. The plaintiff sought default judgment under rule 284. On the 27th of October 2010, the registrar declined to enter a judgment for damages to be assessed under the rule. An aspect may have been the unavailability of an affidavit of service of the claim and statement of claim.

The registrar's notation also notes, "The claim and statement of claim specifically plea a liquidated demand; a debt of $103,176.27 plus interest. The request for default judgment is for un-liquidated damages to be assessed? The request in default need to reflect the claim and statement of claim, alternatively the claim and statement of claim will need to be amended and…

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: [2001] QDC 329
Decision Date: 14/12/2001

CaseChat Overview and Summary

The case of Day v Bell involves a dispute between the plaintiff, One Pty Ltd, and the defendant, Ruth Margaret Byrne. The plaintiff's claim arises from damage to a Kenworth prime mover caused by the defendant's vehicle, which collided with it on the Bruce Highway on April 23, 2009. The plaintiff sought a default judgment for damages to be assessed, but the registrar declined to enter such a judgment, considering the claim to be for liquidated damages. The plaintiff appealed this decision, arguing that the claim was, in fact, for un-liquidated damages.

The primary legal issue in this case was whether the claim for damages was properly characterised as liquidated or un-liquidated. The court had to determine whether the claim was for a sum fixed by the parties as a genuine pre-estimate of damage or if it was for damages that could not be precisely quantified at the time of the breach. The court also needed to decide whether the default judgment should have been granted and whether the defendant was responsible for the registrar's error.

The court concluded that the claim was indeed for un-liquidated damages, as the parties had not fixed a sum as a genuine pre-estimate of damage in the event of a breach. The court referred to the authorities cited in Day v Bell [2001] QDC 329 and Environmental Systems Pty Ltd v Peerless Pty Ltd [2008] VSCA 26, which support the proposition that a claim for damages is not converted into a claim for liquidated damages merely because the plaintiff can specify the costs for which the damages are claimed. The court found that the registrar's decision to decline the default judgment was erroneous, and therefore, the default judgment should have been granted. The court directed that the assessment of damages proceed as per the plaintiff's claim and statement of claim, and it gave leave for the plaintiff to proceed with the assessment of damages by way of application with evidence in chief to be given by affidavit. The court also ordered the defendant to pay the plaintiff's costs of the proceedings to date, including the application filed on November 24, 2010. The plaintiff's application to fix the costs under rule 687(2)(c) in the amount of $2,257.50 was adjourned for hearing with the assessment.

The court ordered that the defendant pay the plaintiff damages to be assessed upon the plaintiff's claim and statement of claim, together with interest, and that the value of damages be assessed by the District Court. The court also granted leave for the plaintiff to proceed with the assessment of damages by way of application with evidence in chief to be given by affidavit, and ordered the defendant to pay the plaintiff's costs of the proceedings to date, including the application filed on November 24, 2010. The plaintiff's application to fix the costs under rule 687(2)(c) in the amount of $2,257.50 was adjourned for hearing with the assessment.

Orders