Dialog Group Pty Ltd v Qureshi

DISTRICT COURT OF QUEENSLAND

CITATION:

Dialog Group Pty Ltd v Qureshi [2011] QDC 113

PARTIES:

DIALOG GROUP PTY LTD
(Plaintiff/Respondent)

V

ZIA QURESHI
(Defendant/Applicant)

FILE NO/S:

1136 of 2010

DIVISION:

Civil jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

22 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2011

JUDGE:

Devereaux SC, DCJ

ORDER:

1.   Application dismissed.

2.   The applicant is to pay the respondent’s costs of the application on the standard basis.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING OR SETTING ASIDE – whether Applicant satisfactorily explained failure to defend claim – whether Applicant had plausible defence in fact or law

Uniform Civil Procedure Rules 1999 (Qld) r 290

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142

AVS Property P/L v QLD-1 P/L &Ors [2007] QSC 365

Evans v Bartlam [1937] AC 473

NMLA v Oasis Developments [1983] 2 Qd R 441

COUNSEL:

Mr M. Martin for the plaintiff/respondent

Ms J. Payne for the defendant/applicant

SOLICITORS:

ClarkeKann for the plaintiff/respondent

James Conomos Lawyers for the defendant/applicant

1. On 14 July 2010, the Deputy Registrar entered judgment in default of filing a Notice of Intention to Defend. This is an application by the defendant made under r 290 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the judgment.

1. The judgment - that the defendant pay to the plaintiff the sum of $245,952.50 including interest and costs - relates to money owed under a share sale agreement. The defendant agreed to purchase shares from the plaintiff for $500,000 to be paid in certain instalments.

1. The defendant’s proposed defence is set out in the draft defence and counter claim which was exhibited to his affidavit in support of the application. The defendant pleads that he was induced to enter into the share sale agreement by the misleading and deceptive conduct and false representations of the plaintiff including that the company in which he purchased shares was “breaking even”, was worth more than $1 million and had retained losses of only $12,000.  The defendant says the company was actually trading at a loss and had retained losses of somewhere as high as $2 million. 

1. The written agreement for the share sale was made on 13 October 2008 and had as its completion date 4 September 2008. The parties’ relationship began much earlier.  The defendant explains in his affidavit that he established a consultancy business, Business Catalyst International (BCI) in 1996 after acquiring the Sydney business of a Perth based consultancy firm.  The business grew between 1996 and 2005 but then suffered a decline.  The defendant was introduced by a business broker to Allan Key, the managing director of the plaintiff.  In September 2006 the defendant sold his business to the plaintiff for $1 million “plus an earn-out based on the profits generated from the business”. 

1. The plaintiff incorporated Business Catalyst Consulting Pty Ltd (BCC) as a wholly owned subsidiary to purchase the business of BCI.  The defendant was appointed chief executive officer…