Embrey v Smart

[2013] QSC 241

SUPREME COURT OF QUEENSLAND

CITATION:

Embrey v Smart & Anor [2013] QSC 241

PARTIES:

ADRIAN JAMES EMBREY
(plaintiff)
v
PHILLIP JOHN SMART
(first defendant)
and
THE GREATEST SALES COMPANY PTY LTD
(ACN 122 572 169)
(second defendant)

FILE NO:

7490 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2013

JUDGE:

Daubney J

ORDERS:

1.    the application filed on 24 April 2013 in Proceeding No. 7490 of 2010 is dismissed with the costs of that application being reserved in Proceeding No. 9104;

2.    in Proceeding No. 9104 of 2010:

      (a)    the judgment entered on 4 November 2010, and the orders of Fryberg J of 20 June 2011 and Clare SC DCJ of 29 August 2011 are set aside;

      (b)    the costs thrown away by reason of that judgment and those orders being set aside are reserved;

      (c)    the costs of and incidental to the application filed 24 April 2013 are reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the applicant has applied for default judgment to be set aside – where the default judgment was irregularly entered– whether the judgment by default which was entered against the first defendant in Supreme Court Proceeding no. 9104/10 should be set aside pursuant to UCPR r 290 – whether the consequential orders should be set aside.

Corporations Act 2001 (Cth), s205B, s205C
Personal Injuries Proceedings Act 2002
Uniform Civil Procedure Rules 1999 (Qld), rr 8, 105, 116, 290

Laurie v Carroll (1958) 98 CLR 310, cited.
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, cited.
Kendall v Sweeney & Ors [2002] QSC 404, considered.
Thomas Bishop Ltd v Helmville Ltd [1972] 2 WLR 149, cited.

COUNSEL:

RAI Myers for the plaintiff
RS Ashton for the first defendant

SOLICITORS:

Shine Lawyers for the plaintiff
Minter Ellison for the first defendant

1. To put this application to set aside a judgment entered against the first defendant in its proper context, it is necessary to set out the unfortunate history of the proceedings between the parties.

Background

1. As at 5 October 2007, the first defendant, Phillip John Smart (“Smart”), was the sole director and shareholder of the second defendant, The Greatest Sales Co Pty Ltd (“TGSC”).  At that time, TGSC conducted a business from premises at 43 Ipswich Road, Woolloongabba (“43 Ipswich Road”).  The plaintiff was at that time working as a subcontracted sales representative for a business known as “Walken Marketing”, which was a business competitor of TGSC.  The plaintiff claims that on 5 October 2007 he was assaulted by Smart, as a consequence of which he suffered serious physical and psychological injuries.

1. On 16 December 2008, the plaintiff served on Smart a Form 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 (“PIPA”). Smart did not respond to…