Egan v Posman - [2018] QDC 53

DISTRICT COURT OF QUEENSLAND

CITATION:

Egan v Posman [2018] QDC 53

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:

4 April 2018

DELIVERED AT:

Brisbane

JUDGE:

Porter QC DCJ

ORDER:

1. Pursuant to Rule 367 UCPR that the application be heard and determined by a Judge of the Court.

2. Pursuant to Rule 117 UCPR that the claim and statement of claim be taken to be served on the defendant on 26 February 2018.

3. Judgment be entered against the defendant pursuant to Rule 283(3) UCPR in the amount of $329,874.52 plus interest pursuant to Section 58 Civil Proceedings Act 2011 (Qld) in the amount of $55, 134.92.

4.   The defendant pay the plaintiff’s costs on a standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – OTHER PARTICULAR JUDGMENTS – ON CLAIM FOR DEBT OR LIQUIDATED DEMAND – where there is an application for default judgment pursuant to Rule 283 UCPR – where a request for default judgment under Rule 283 UCPR had already been made and rejected by the registrar – where a further request was made by application to the Court as constituted by a judge – whether the claim and statement of claim were able to be served in Papua New Guinea – whether the claim and statement of claim has been served on the defendant.

Cases

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 35 ALR 625
AMCI P/L v Corcoal Management P/L [2013] QSC 50
Nominal Defendant v Manning (2000) 50 NSWLR 139
Robinson v John Laws [2003] QSC 114

Legislation

Business Names Registration Act 2011 (Cth)
Business Names Act 1963 (PNG)
National Court Rules 1983 (PNG) Order 6 Rule 8
Uniform Civil Procedure Rules 1999 (Qld) rr 24, 105, 113, 124, 129, 283, 455, 791, 982

SOLICITORS:

Rostron Carlyle Lawyers for the plaintiff

This is an application for default judgment pursuant to Rule 283 UCPR. Two substantive issues arise:
(a)Whether the claim and statement of claim were able lawfully to be served in Papua New Guinea without the Court’s leave; and
(b)Whether the claim and statement of claim have been served on the defendant.

Background

The proceedings were issued in this Court on 3 February 2017. The plaintiff was, until recently, a well-known barrister practicing in Brisbane and on occasions in Papua New Guinea. The defendant was, and is, the principal of a law firm located in Port Moresby, Papua New Guinea. The plaintiff seeks default judgment for his claim for $329,874.52 plus interest as money due and owing under three retainer agreements with the defendant.

The statement of claim relevantly provides:
1.The Plaintiff (Egan):
a.Was at all material times a Barrister resident in, and duly admitted to practice, in, Queensland.
b.Was at all material times a Lawyer duly admitted to practice as Overseas Counsel in Papua…

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 53
Decision Date: 4 April 2018

CaseChat Overview and Summary

The matter of Egan v Posman was heard in a relevant Australian state court. The dispute involved an application for a default judgment for a debt owed by the defendant to the plaintiff. The case was about whether a previous application for default judgment had been properly rejected and whether a subsequent application could be considered. Additionally, the case examined the validity of service of the claim and statement of claim to the defendant in Papua New Guinea.

The legal issues that the court had to decide were whether the initial request for a default judgment had been appropriately dismissed by the registrar and if the subsequent application could be processed by the court. The court also needed to determine if the claim and statement of claim had been correctly served to the defendant overseas. These issues were central to the plaintiff's ability to secure a default judgment for the debt owed.

The court examined the procedural history of the case, noting that the initial application for default judgment had indeed been rejected by the registrar. However, the subsequent application made directly to the court raised different considerations. The court found that the service of the claim and statement of claim to the defendant in Papua New Guinea was valid, fulfilling the necessary procedural requirements. Consequently, the court ruled in favour of the plaintiff, allowing the default judgment to proceed. The judgment awarded the plaintiff the sum of $329,874.52 plus interest, amounting to $55,134.92, and also ordered the defendant to pay the plaintiff's costs.

Orders

Orders of the court

1. Pursuant to Rule 367 UCPR that the application be heard and determined by a Judge of the Court.

2. Pursuant to Rule 117 UCPR that the claim and statement of claim be taken to be served on the defendant on 26 February 2018.

3. Judgment be entered against the defendant pursuant to Rule 283(3) UCPR in the amount of $329,874.52 plus interest pursuant to Section 58 Civil Proceedings Act 2011 (Qld) in the amount of $55, 134.92.

4. The defendant pay the plaintiff’s costs on a standard basis.

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 53
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:	4 April 2018
DELIVERED AT:	Brisbane
JUDGE:	Porter QC DCJ
ORDER:	1. Pursuant to Rule 367 UCPR that the application be heard and determined by a Judge of the Court. 2. Pursuant to Rule 117 UCPR that the claim and statement of claim be taken to be served on the defendant on 26 February 2018. 3. Judgment be entered against the defendant pursuant to Rule 283(3) UCPR in the amount of $329,874.52 plus interest pursuant to Section 58 Civil Proceedings Act 2011 (Qld) in the amount of $55, 134.92. 4. The defendant pay the plaintiff’s costs on a standard basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – OTHER PARTICULAR JUDGMENTS – ON CLAIM FOR DEBT OR LIQUIDATED DEMAND – where there is an application for default judgment pursuant to Rule 283 UCPR – where a request for default judgment under Rule 283 UCPR had already been made and rejected by the registrar – where a further request was made by application to the Court as constituted by a judge – whether the claim and statement of claim were able to be served in Papua New Guinea – whether the claim and statement of claim has been served on the defendant. Cases Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 35 ALR 625 AMCI P/L v Corcoal Management P/L [2013] QSC 50 Nominal Defendant v Manning (2000) 50 NSWLR 139 Robinson v John Laws [2003] QSC 114 Legislation Business Names Registration Act 2011 (Cth) Business Names Act 1963 (PNG) National Court Rules 1983 (PNG) Order 6 Rule 8 Uniform Civil Procedure Rules 1999 (Qld) rr 24, 105, 113, 124, 129, 283, 455, 791, 982
SOLICITORS:	Rostron Carlyle Lawyers for the plaintiff