Ezy Homes Investments Pty Ltd v Bugg

CITATION:

Ezy Homes Investments Pty Ltd v Bugg [2010] QDC 273

PARTIES:

EZY HOMES INVESTMENTS PTY LTD
(Respondent)

v

SHANNON BUGG
(Applicant)

DIVISION:

Civil

PROCEEDING:

Application to set aside default judgment

FILE:

D127/2009

ORIGINATING COURT:

Beenleigh District Court

DELIVERED ON:

18 May 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

18 May 2010

JUDGE:

Dearden DCJ

ORDER:

The default judgment in the amount of $182,125.98, entered in favour of the plaintiff on 18 January 2010, in claim number D127/09; and the enforcement warrant made by the Deputy Registrar on 16 February 2010, in claim number D127/09 be set aside pursuant to rule 290 of the Uniform Civil Procedure Rules 1999.
Costs reserved.

CATCHWORDS:

APPLICATION – PRACTICE AND PROCEDURE – STATEMENT OF CLAIM – application to set aside default judgment – where respondent failed to disclose a cause of action – where Uniform Civil Procedure Rules are not complied with – where the Statement of Claim is vague.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Hughes v Justin [1894] 1 QB 667

Alliance Acceptance Co. Ltd v Makas [1976] 26 FLR 451

Daly v Silley [1960] VR 353.

COUNSEL:

J. Fenton for the applicant.

Respondent self represented.

SOLICITORS:

A W Bale and Son for the applicant.

Respondent self represented.

DISTRICT COURT OF QUEENSLAND
HIS HONOUR:  This is an application to set aside default judgment in the amount of $182,125.98, entered in favour of the plaintiff, Ezy Homes Investments Pty Ltd in this Court on 18 January 2010, in respect of claim number D127/2009, and further, to set aside the enforcement warrant made by the Deputy Registrar of this Court on 16 February 2010 in respect of the same claim number.

The grounds of the application are that judgment was not regularly entered because the claim and statement of claim did not disclose a cause of action, and are otherwise vague and embarrassing. I accept the submission made on behalf of the applicant/defendant, Mr Bugg, that, "If the judgment is irregularly, then the defendant is entitled to set aside the judgment as of right, regardless of a defence on the merits." Hughes v. Justin [1894] 1 QB 667; Alliance Acceptance Co. Ltd v. Makas [1976] 26 FLR 451; Daly v. Silley [1960] VR 353.

It is clear that in respect of both the default judgment and the enforcement warrant, there has not been strict compliance with the Rules, and I note that Mr Bridgeford accepts that there are no submissions which he was able to make on behalf of the plaintiff company which could deal with the obvious and inescapable failures and errors in the statement of claim.

The entering of judgment by default is, of course, a significant power on the part of the Court, and where that judgment has been irregularly entered because of difficulties such as, in this case, with a statement of claim that doesn't disclose a cause of action, then it is entirely appropriate for the Court to set aside that irregular judgment.

The particular pleading…