Emanual Casimir Van Dijk v Raymond Van Dijk

[2010] QDC 524

[2010] QDC 524

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No CLD143 of 1999

EMANUAL CASIMIR VAN DIJK

and

WILHELMINA JOHANA CONELIA VAN DIJK

Plaintiff

Plaintiff

and

RAYMOND VAN DIJK

Defendant

BRISBANE

..DATE 01/12/2010

ORDER

CATCHWORDS

Adjournment of application to set aside an old default judgement on failure of applicant to appear

HIS HONOUR:  Adjourned to 15th of the 12th 2010 on Mr Goodwin's undertaking to confirm the date to the applicant’s counsel, Mr Clutterbuck.

That order is made in extremely messy circumstances which include the antiquity of relevant events.  The missing respondent's application before the court which comes on today in consequence of a consent order adjourning it to today was filed on the 27th of September 2010.  It seeks the setting aside of a default judgment entered by the Registrar at Maryborough as long ago as the 17th of August 2001.

The proceeding itself is remarkable being one instituted by parents against a son.  What may have spurred the applicant into action is that his trustee in bankruptcy has apparently taken steps to extend his bankruptcy under a Court order of the 11th of June 2003.  Mr Goodwin, representing the respondent plaintiffs today, said to the court that his understanding is that the bankruptcy can't be extended any longer than the 11th of June 2011 in any event.

The applicant's story has been that he had no idea he was bankrupt or that there was a District Court judgment against him until very recently when pursued by the trustee for information.  The story, presented by a solicitor's affidavit in the first instance, has been varied to the extent that the applicant in his own affidavit now concedes that he was served with the District Court claim and statement of claim.  He says he didn't take that seriously, being of the view that the relevant debt had been paid and that he parents weren't seriously pursuing the claim for interest under a bill of sale which he appears to concede that he signed.

The matter can't proceed today because the applicant's counsel is unavailable, apparently being engaged in another court and unaware that this matter had been listed today.  The adjournment to today, for what it's worth, is said to have been necessitated because the court file was unable to be located or because there was a fear that it mightn't be located.

Mr Goodwin reports an agreement with his opposing counsel to adjourn the matter for two weeks on his undertaking to let his colleague know of the adjourned date.

So, adjourned to the 15th of December 2010 on Mr Goodwin's undertaking to confirm the date to the applicant's counsel, Mr Clutterbuck.  Costs reserved.

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