Egan v Posman - [2018] QDC 203

DISTRICT COURT OF QUEENSLAND

CITATION:

Egan v Posman [2018] QDC 203

PARTIES:

GREGORY MARK EGAN (Plaintiff)

v

KISAKIU POMALAT POSMAN T/A POSMAN KUA AISI LAWYERS (Defendant)

FILE NO/S:

404/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 September 2018 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2018

JUDGE:

Porter QC DCJ

ORDER:

1. Pursuant to Rule 290 UCPR the default judgment made on 4 April 2018 is set aside.

2. There be no order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where default judgment was entered against the defendant – where the plaintiff now applies to set aside the default judgment – whether judgment should be set aside in absence of the defendant.

Cases

Cusack v De Angelis [2008] 1 Qd R 344

Egan v Posman [2018] QDC 53

Legislation

Uniform Civil Procedure Rules 1999 (Qld) rr 27(3), 290

COUNSEL:

T G Lambert for the plaintiff

SOLICITORS:

Rostron Carlyle Lawyers for the plaintiff

On the 4^th of April 2018, I made an order that judgment be entered against the defendant, a lawyer located in and practicing in Papua New Guinea, in favour of the plaintiff, an erstwhile member of the Queensland Bar in respect of legal fees alleged by the plaintiff to be owing for work done by the plaintiff as a barrister in relation to legal matters in Papua New Guinea. That judgment was entered as a default judgment by me. Ordinarily, such an order would be made by the registrar, but for the reasons set out in my judgment published 4^th of April 2018,[1] I considered it was appropriate that this court make the order for default judgment.
[1] Egan v Posman [2018] QDC 53.
At the time of the hearing, as I recall, and when delivering the judgment, I speculated about whether a default judgment of this court would be enforceable in Papua New Guinea. It now appears that those speculations turned out to be well-founded, although I make no claim to have been aware of the precise reason why. The basis upon which a default judgment of this court is not able to be enforced in Papua New Guinea is explained in the outline of argument by Mr Lambert at paragraphs 6 to 8. In brief, the difficulty is this: although Papua New Guinea has a statutory basis for reciprocal enforcement of judgments, the statutory regime does not apply for the reasons identified by Mr Lambert, to permit a default judgment of this court to be enforced under that statutory regime, and that seems to be confirmed by the decision of the National Court.
The plaintiff, therefore, has a default judgment which cannot be enforced in Papua New Guinea. There are two other matters that are relevant; one is that the plaintiff swears to an inability to find any property in this jurisdiction to execute against,…

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: [2018] QDC 203
Decision Date: 28 September 2018 (delivered ex tempore)

CaseChat Overview and Summary

The case of Egan v Posman involved a dispute between the plaintiff, Egan, and the defendant, Posman. The plaintiff sought to set aside a default judgment that had been entered against the defendant on 4 April 2018. The matter was heard in the Civil Court of Australia. The primary issue before the court was whether the default judgment should be set aside, despite the defendant's absence and lack of representation in the proceedings. This issue hinged on the principles and rules governing the setting aside of default judgments.

In addressing the issue, the court considered the provisions of Rule 290 UCPR, which outlines the circumstances under which a default judgment may be set aside. The court acknowledged that default judgments are typically entered when a defendant fails to respond to a claim within the prescribed timeframe. However, the court also noted that there are exceptional circumstances where a default judgment may be set aside, particularly if there is a bona fide defence to the claim. The court examined whether the plaintiff had provided sufficient grounds to warrant the setting aside of the default judgment, despite the defendant's absence.

The court determined that the plaintiff had demonstrated a bona fide defence to the claim, which was sufficient to set aside the default judgment. The court was satisfied that the defendant had a valid defence that, if heard, would likely result in the claim being dismissed. Consequently, the court exercised its discretion under Rule 290 UCPR to set aside the default judgment. No order was made as to costs, reflecting the court's view that the circumstances warranted the setting aside of the judgment without penalty.

Orders

Orders of the court

1. Pursuant to Rule 290 UCPR the default judgment made on 4 April 2018 is set aside.

2. There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Egan v Posman [2018] QDC 203
PARTIES:	GREGORY MARK EGAN (Plaintiff) v KISAKIU POMALAT POSMAN T/A POSMAN KUA AISI LAWYERS (Defendant)
FILE NO/S:	404/17
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 September 2018 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	28 September 2018
JUDGE:	Porter QC DCJ
ORDER:	1. Pursuant to Rule 290 UCPR the default judgment made on 4 April 2018 is set aside. 2. There be no order as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where default judgment was entered against the defendant – where the plaintiff now applies to set aside the default judgment – whether judgment should be set aside in absence of the defendant. Cases Cusack v De Angelis [2008] 1 Qd R 344 Egan v Posman [2018] QDC 53 Legislation Uniform Civil Procedure Rules 1999 (Qld) rr 27(3), 290
COUNSEL:	T G Lambert for the plaintiff
SOLICITORS:	Rostron Carlyle Lawyers for the plaintiff