Douglas Joint Ventures Pty Ltd v Whaley Consulting Group Pty Ltd

[2009] QDC 375

[2009] QDC 375

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2059 of 2009

DOUGLAS JOINT VENTURES PTY LTD	Plaintiff
and
WHALEY CONSULTING GROUP PTY LTD	Defendant

BRISBANE

..DATE 12/11/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999 r 150(3), r 159, r 372

When Registrar declined to enter judgment in default because of omission of details that the rules required be there - rather than amend, plaintiff sought an order declaring that the deficiencies did not render the statement of claim or service of it ineffectual

HIS HONOUR:  Before the Court is an application by the plaintiff in the following terms:

"TAKE NOTICE that the Plaintiff is applying to the Brisbane Court at Brisbane on the 29 day of October 2009, for the issue of:

1. That the Statement of Claim filed on the 24 July 2009 not be deemed improper due to the fact that the Statement of Claim did not have a Notice pursuant to section 150(3) of the Uniform Civil Procedure Rules 1999 attached. As such, this Claim not set aside for technical error under section 107(1) of the District Court Rules 1968.

The Plaintiff believes the District Court has jurisdiction to decide this Application.

This application will be heard by the Court at

On:12/11/09 at 10:00 am.

Dated at this 4th day of November 2009."

The drafting and composition of the application are less than ideal. The reference to the former District Court Rules is inappropriate, but it is a simple enough step to understand that the application should be approached under Rule 371, the effect of which is indistinguishable. The UCPR provision, indeed, is more useful in specifically providing for the Court's granting the relief which I have determined is appropriate here, namely to order pursuant to Rule 371 that the omission from the statement of claim of the matters that should have been set out to comply with Rule 150(3)(b), (c), (d) and (e) does not render the statement of claim or service thereof ineffectual.

The application is brought following the Registrar's declining to award judgment in default of appearance of the defendants in light of the omission of one or more of the mattes referred to above which ought to have been there.

Rule 150(3) is in mandatory terms, as is Rule 159 which is more expansive in respect of what must be specified as regards interest claimed. 

Here the statement of claim seeks by way of repayment of loan moneys payment of $67,147.28, also "interest" and "costs", without elaboration. 

Reference to Rules 150 and 159 shows the deficiencies clearly to which must be added omission of the paragraph (d) statement "that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends".

Likewise the statement required by (e) of "additional costs of obtaining judgment in default" of a notice of intention to defend which was also missing.

It ought to be a simple enough matter to provide the Rule 150(3) provisions as the appropriate notice is part of form 16; however, the necessity to include it was overlooked here.

It rather appears this is not an isolated occurrence given the reference to another concededly (and similarly) deficient statement of claim exhibited to the solicitor's affidavit relied on in support of the application.  It mistakenly exhibits the claim and statement of claim in a Magistrates Court proceeding apparently involving the same parties in which only $6,000 was claimed.  The Rule 150(3) matters were dealt with or not dealt with in the same way as is encountered here. 

It is a practical and I think reasonable approach to advance matters by reliance on the filed claim and statement of claim rather than the inappropriate affidavit exhibit.

An application of the present kind by Rule 372 must set out details of the failure to comply with the rules.  While more detail might have been given than was, I think it would be unduly harsh for the Court to refuse the relief sought on that account. 

Whether the plaintiff is now out of the woods, so to speak, remains to be seen.  The judgment has been made that amendment of the proceeding ought not to be sought.  That amendment would presumably lead to a need for re-service.

It is difficult to predict to what extent a Registrar, asked to enter a default judgment in the future, would be prepared to grant judgment for anything above the amount of the basic claim specified as a dollar amount.

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