Green v Tri-Barfen Pty Ltd

[2006] QDC 160

DISTRICT COURT OF QUEENSLAND

CITATION:

Green v Tri-Barfen Pty Ltd [2006] QDC 160

PARTIES:

SHAUN GREEN

Respondent/Plaintiff

V

TRI-BARFEN PTY LTD trading as AUS-STEEL BUILDING SYSTEMS (ABN 32 085 873 695)

Applicant/Defendant

FILE NO/S:

1254/2005

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

9 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Set aside default judgment entered 5 December 2005

CATCHWORDS:

PRACTICE – DEFAULT JUDGMENT – SETTING ASIDE – whether judgment irregularly entered – whether claim for liquidated damages

Uniform Civil Procedure Rules 150, 283, 290

Sale of Goods Act 1896, ss 17, 54

Alexander v Ajax Insurance Co Ltd (1956) VLR 436
Day v Bell [2000] QDC 014
Gull v Saunders (1913) 17 CLR 82
Hammer & Barrow v Coca Cola (1962) NZLR 723
Rossco Developments Pty Ltd v O’Halloran (1980) 29 ACTR 1

COUNSEL:

Mr D H Locke, Solicitor, for Applicant/Defendant

Mr A Simpson of Counsel for Respondent/Plaintiff

SOLICITORS:

Forbes Dowling for Applicant

Broadley Rees for Respondent

1. The defendant applies to set aside a judgment entered against it by the plaintiff on the basis the judgment was irregularly entered; or, in the alternative, that the court’s discretion to set it aside should be exercised.  The issues are several; whether the claim, for which judgment was entered, was liquidated or unliquidated; whether or not service was effective; whether or not apparent non-compliance with the UCPR
   r 150(3) rendered the judgment defective; and, lastly, whether or not the discretion is called up.

1. The dispute arises from the sale, by the defendant, of a steel shed to the plaintiff.  The statement of claim alleges the contract was one to which the Sale of Goods Act 1896 (Qld) applies; that the shed was not, however, fit for its purpose or of merchantable quality, and the defendant also failed to provide proper plans and other equipment.  These statutory warranties were, it is alleged, breached and the statement of claim seeks specific performance or “... further or alternatively $20,020 in damages for breach of contract”.  The sum claimed allegedly coincides with the amount paid by the plaintiff to the defendant under the contract.

1. The defendant denied it was ever served with the originating proceedings.  The parties signified they would seek leave to call deponents who had filed affidavits about service but did not press their applications.  A process server, a Mr Mayfield, swore that he served one of the defendant’s directors, Mr Glen Sharkey, by delivering the claim and statement of claim to him personally at 48 McIvor Court, Ormeau in the early morning on 14 May 2005.  Mr Sharkey swore he had never been served and says that the Ormeau property can only be entered via an easement and through a gate which requires the use of a remote control key; and, without that remote key, it is not possible to obtain entrance to the property.  His wife, also a director, says she was at home with him…