Hill v Robertson Suspension Systems Pty Ltd - [2009] QDC 165

DISTRICT COURT OF QUEENSLAND

CITATION:

Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165

PARTIES:

GAIL MAREE HILL & ORS

Plaintiffs

AND

ROBERTSON SUSPENSION SYSTEMS PTY LTD

Defendant

FILE NO/S:

BD333/09

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2009

JUDGE:

McGill DCJ

ORDER:

Default judgment given 20 March 2009 set aside. Declare effectual notice of intention to defend and defence filed 2 June 2009. Order plaintiffs pay defendant’s costs of the application to be assessed.

CATCHWORDS:

PRACTICE – Default judgment – proof of service – requirements for – whether judgment entered irregularly

JUDGMENTS AND ORDERS – Setting aside – default judgment – whether regularly entered – requirement for proof of service under Corporations Act

Corporations Act 2001 (Cth) s 109X(1)(a)

UCPR rr 107, 120, 282

Bratick v Toohey [1988] 2 Qd R 140 – followed.
Commissioners of Customs of Excise v IFS Irish Fully Fashioned Stockings Ltd [1957] 1 WLR 397 – cited.
Commonwealth Broadcasting Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd [2008] QSC 210 – cited.
Cusack v de Angelis [2007] QCA 313 – followed.
Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530 – cited.
Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd (2004) 53 ACSR 517 – cited.
Ezi‑Frame Pty Ltd v Al‑Cote (Australia) Pty Ltd [1982] Qd R 602 – cited.
Hughes v Justin [1894] 1 QB 667 – cited.
Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714 – cited.
RT Co Pty Ltd v Minister for the Interior (1957) 98 CLR 168 – followed.
Thomas v Deputy Commissioner of Taxation [2005] QCA 85 – cited.
Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 – cited.
Vosmaer v Spinks [1964] QWN 36 – cited.
Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 – cited.

COUNSEL:

M.D. Fischer (Solicitor) for the plaintiffs

S.D. Anderson for the defendant

SOLICITORS:

S.J. Guernsey & Company Solicitors for the plaintiffs

Platinum Lawyers for the defendant

How does one prove service of a claim and statement of claim on a company? UCPR r 107 requires a document to be served personally on a company to be served as required under the Corporations Act. The Corporations Act 2001 (Cth) provides in s 109X(1)(a), relevantly, that “for the purposes of any law, a document may be served on a company by … posting it to the company’s registered office … .” The location of the company’s registered office can be ascertained simply by a search of the records of the Australian Securities and Investments Commission (ASIC). Because of the terms of the provision dealing with when a change in the address of the registered office takes effect (s 142), for practical purposes the registered office for the purpose of s 109X means that the place shown as the registered office in the records of ASIC.[1] On the face…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QDC 165
Decision Date: 19 June 2009

CaseChat Overview and Summary

In the matter of Hill v Robertson Suspension Systems Pty Ltd, the plaintiff sought to set aside a default judgment that had been entered against the defendant. The dispute involved the validity of the default judgment and the defendant's subsequent application to have it set aside. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the default judgment had been irregularly entered, specifically whether there was sufficient evidence of service of the originating process on the defendant. Under the Corporations Act, proof of service is required to ensure that the defendant had proper notice of the proceedings. The court had to determine if the requirements for proof of service had been met and whether this affected the regularity of the judgment.

The court held that the default judgment was irregularly entered because there was no proof of service of the originating process on the defendant. The plaintiff had failed to provide the necessary documentation to demonstrate that the defendant had been served, which is a fundamental requirement under the Corporations Act. Consequently, the court set aside the default judgment and declared the notice of intention to defend and the defence filed on 2 June 2009 as valid. The court also ordered that the plaintiffs pay the defendant's costs of the application, to be assessed.

This decision underscores the importance of adhering to statutory requirements for service of process to ensure that judgments are regularly entered. Failure to meet these requirements can lead to the setting aside of default judgments, as was the case here.

Orders

Orders of the court

Default judgment given 20 March 2009 set aside. Declare effectual notice of intention to defend and defence filed 2 June 2009. Order plaintiffs pay defendant’s costs of the application to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165
PARTIES:	GAIL MAREE HILL & ORS Plaintiffs AND ROBERTSON SUSPENSION SYSTEMS PTY LTD Defendant
FILE NO/S:	BD333/09
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2009
JUDGE:	McGill DCJ
ORDER:	Default judgment given 20 March 2009 set aside. Declare effectual notice of intention to defend and defence filed 2 June 2009. Order plaintiffs pay defendant’s costs of the application to be assessed.
CATCHWORDS:	PRACTICE – Default judgment – proof of service – requirements for – whether judgment entered irregularly JUDGMENTS AND ORDERS – Setting aside – default judgment – whether regularly entered – requirement for proof of service under Corporations Act Corporations Act 2001 (Cth) s 109X(1)(a) UCPR rr 107, 120, 282 Bratick v Toohey [1988] 2 Qd R 140 – followed. Commissioners of Customs of Excise v IFS Irish Fully Fashioned Stockings Ltd [1957] 1 WLR 397 – cited. Commonwealth Broadcasting Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd [2008] QSC 210 – cited. Cusack v de Angelis [2007] QCA 313 – followed. Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530 – cited. Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd (2004) 53 ACSR 517 – cited. Ezi‑Frame Pty Ltd v Al‑Cote (Australia) Pty Ltd [1982] Qd R 602 – cited. Hughes v Justin [1894] 1 QB 667 – cited. Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714 – cited. RT Co Pty Ltd v Minister for the Interior (1957) 98 CLR 168 – followed. Thomas v Deputy Commissioner of Taxation [2005] QCA 85 – cited. Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 – cited. Vosmaer v Spinks [1964] QWN 36 – cited. Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 – cited.
COUNSEL:	M.D. Fischer (Solicitor) for the plaintiffs S.D. Anderson for the defendant
SOLICITORS:	S.J. Guernsey & Company Solicitors for the plaintiffs Platinum Lawyers for the defendant