Deputy Commissioner of Taxation v Pearce

[2006] QDC 26

[2006] QDC 026

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3432 of 2005

DEPUTY COMMISSIONER OF TAXATION	Plaintiff
and
FREDERICK THOMAS PEARCE	Defendant

BRISBANE

..DATE 01/02/2006

JUDGMENT

CATCHWORDS: Uniform Civil Procedure Rules r 290 - default judgment amended on plaintif's ex parte application - judgment reduced by $500 to reflect payment made on eve of issue of claim.

HIS HONOUR:  This is an application under rule 290 for amendment of a judgment obtained under rule 283 to reflect the payment of the sum of $500 on the eve of the issue of the claim by the defendant.  That payment, Ms Hopley informs the Court, was made under the "BILLPAY" system and not processed by the plaintiff's own system in such a way as to come to notice in time to lead to a reduction in the amount claimed in the proceeding.

There is perhaps less excuse for the plaintiff's having sought a judgment in respect of the full amount of the claim by a request for default judgment filed and dealt with on the 25th  of October 2005, the payment having been made on the 12th of September of 2005.  That an affidavit was used before the Registrar, sworn on that date, which deposed that, "No monies have been received from the defendant or otherwise credited towards the debt in part satisfaction of this claim" perhaps bespeaks a situation in which the left hand did not know what the right hand was doing, so to speak.

There is an old English case Hughes v Justin [1894] 1QB 667 in which in circumstances where a payment had been made by the defendant after issue of the writ a judgment in default for the full amount was held to have been wrongly entered and ordered to be set aside. It is interesting that the Divisional Court had taken the view that the judgment could stand. The real conflict there seemed to be about incidence of costs.

The principle mentioned in the headnote, that judgment in default of appearance ought only to be entered for the amount actually due at the time when such judgment is entered, seems obvious.  The report does not reveal what the plaintiff next did or might have done as the English rules then stood.  There seems to be no counterpart to rule 290, which usefully provides that:

"The Court may set aside or amend a judgment by default under this division, and enforcement of it on terms, including terms about costs and the giving of security, the Court considers appropriate."

I think that provision is effective to allow the Court to make orders to meet the justice of a case, such as the present, so that the correct judgment is entered. That is consistent with the philosophy of the UCPR set out in rule 5.

The application is ex parte.  The plaintiff having noticed the discrepancy, Ms Hopley has informed the Court that the reason for the application is that bankruptcy proceedings are likely to be got underway. 

The plaintiff is anxious not to confront any problems that may flow from its judgment having been irregularly entered.  Hughes v. Justin shows it is right to have concerns about that in the present situation in which the $500 payment was made before the proceeding was instituted - rather more difficult for the plaintiff unless the situation is regularised.  The amendment of the judgment is plainly in the defendant's interest. 

It does not trouble me that he has not been served with the application.  The Court's order will be as follows.  Order pursuant to rule 290 that the judgment entered on 25 October 2005 be amended by reducing the principal judgment sum from $89,075.03 to $88,575.03 to reflect a payment made by the defendant on the eve of issue of the claim, the order for costs being unaffected.  No order as to costs of this application.

That is the Court's order.  I have also initialled an "amended judgment", which Ms Hopley has supplied.  It is obviously appropriate that that be on the file because it will represent the form of the judgment which the plaintiff wishes and is entitled to take out. 

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