Elders Rural Services Australia Limited v Landman Pty Ltd

[2015] QDC 131

DISTRICT COURT OF QUEENSLAND

CITATION:

Elders Rural Services Australia Limited v Landman Pty Ltd & Anor [2015] QDC 131

PARTIES:

ELDERS RURAL SERVICES AUSTRALIA LIMITED ACN 004 045 121

(respondent/plaintiff)

v

LANDMAN PTY LTD ACN 010 860 929

(first applicant/defendant)

AND

MICHELLE ANNE KLEINIG

(second applicant/defendant)

FILE NO/S:

2942/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 May 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2015

JUDGE:

Samios DCJ

ORDER:

1.          Dismiss the application to set aside the judgment of Rackemann DCJ entered 19 January 2015.

2.          That pursuant to r 290 Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the default judgment given in this proceeding on 19 January 2015 is varied by amending orders 1 and 9 by replacing, in each order, the figure “$9,149.18” with the figure “$3,013.30”.

3. That, pursuant to r 290 UCPR, the first and/or second defendants pay the plaintiff’s costs of the application on the indemnity basis.

CATCHWORDS:

PRACTICE –– ACTION – SETTING ASIDE JUDGMENT – DEFAULT JUDGMENT – where the first and second applicant/defendant apply to set aside a default judgment entered into for the respondent/plaintiff – where the first and second applicant/defendant did not appear at the hearing at which the default judgment was entered into – whether the first and second applicant/defendant provide a proper explanation for their failure to appear – whether the default judgment should be set aside

Legislation

Uniform Civil Procedure Rules 1999 (Qld) rr 288, 290

Cases

EA & S Plaster Company Pty Ltd v The Registrar of Titles & Ors [2000] QSC 14

COUNSEL:

Mr M Callanan for the respondent/plaintiff

Ms M Kleinig (self-represented) for the first and second applicant/defendant

SOLICITORS:

Patane Lawyers for the respondent/plaintiff

The first and second applicant/defendant were not represented by solicitors

1. HIS HONOUR: This is an application to set aside a judgment entered by Judge Rackemann on 19 January 2015. The application is brought pursuant to rule 290 of the Uniform Civil Procedure Rules.  That rule provides:

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

1. The claim was commenced on the 31^st of July 2014.  The plaintiff sued Landman Pty Ltd as first defendant and Michelle Anne Kleinig as second defendant.  The plaintiff sought declarations.  It alleged a written agreement between it and Landman Pty Ltd made on or about 2 May 2012.  This is called a credit agreement.  The plaintiff alleged in the claim that Landman Pty Ltd granted an equitable charge and/or an equitable mortgage to the plaintiff in respect of its interest in the estate in fee simple of a piece of land.  The declarations sought included that the equitable charge and/or equitable mortgage charged the land with payment of all moneys due and owing by Landman Pty Ltd to the plaintiff on any account whatsoever associated with the credit facility held…