Gavin Boyle Constructions Pty Ltd v Fabrok Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Gavin Boyle Constructions Pty Ltd v Fabrok Pty Ltd & Anor [2011] QDC 214

PARTIES:

GAVIN BOYLE CONSTRUCTIONS PTY LTD
(Plaintiff)

AND

FABROK PTY LTD
(First defendant)

AND

THE STONEMAKERS PTY LTD
(Second defendant)

FILE NO/S:

D3085/10

DIVISION:

PROCEEDING:

Application to set aside default judgment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

13 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2011

JUDGE:

McGill DCJ

ORDER:

Default judgment set aside; time for filing and service of notices of intention to defend and defence extended to 27 September 2011; no order as to costs.

CATCHWORDS:

PRACTICE – Default judgment – setting aside regularly entered judgment – whether enough shown as good arguable defence on merits

PRACTICE – Default judgment – signed without notice to solicitors known to be acting – set aside without costs

UCPR r 290

Coburn v Brotchie (1890) 16 VLR 6 – followed.
Jiona Investments Pty Ltd v Medihelp General Practice Pty Ltd [2010] QCA 99 – applied.
Troiani v Alfost Properties Pty Ltd [2002] QCA 281 – distinguished.

COUNSEL:

T. Mitchell (Solicitor) for the plaintiff

S.D. Anderson for the first defendant

SOLICITORS:

1. This is an application to set aside default judgment which was signed against the first defendant on 21 December 2010 for damages to be assessed on the plaintiff's statement of claim.  The claim was filed on 27 October 2010 and was served by sending a copy to the registered office of the first defendant under cover of a letter dated that day.

1. The material shows that in fact the claim and statement of claim were received at the registered office, which was at a firm of accountants.  The accountant simply scanned the documents and emailed them to the person in control of the first defendant.  It appears, however, that that email was not received due to some problem with the email provider at the time, and in any event the person who controlled the first defendant has sworn that the first defendant was not in fact aware of the proceeding and the filing and the service of the document until there was further correspondence after the default judgment had been signed from the solicitors for the plaintiff.

1. The claim, which is not a large one, is for damages for breach of contract.  There is an alternative claim for damages under the Trade Practices Act, but I do not need to say anything much about that because it does not seem to be disputed that there would be a good defence, or at least prima facie, a good arguable defence to that claim.  There are, I think, serious difficulties with any claim under the Trade Practices Act.  In relation to the claim for damages for breach of contract, however, the plaintiff's case stripped to its essentials is that there was a contract for the first defendant to supply certain goods, namely concrete columns, to the plaintiff, that the columns were supplied under the contract, that there was under…