Houston v Smith - [2017] QDC 296

DISTRICT COURT OF QUEENSLAND

CITATION:

Houston v Smith [2017] QDC 296

PARTIES:

JOHN MICHAL HOUSTON

(plaintiff)

v

JAN MAREE SMITH

(defendant)

FILE NO/S:

3415 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 July 2017 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 2017, 13 and 21 July 2017

JUDGE:

Smith DCJA

ORDER:

Application dismissed

CATCHWORDS:

PRACTICE AND PROCEDURE- APPLICATION TO SET ASIDE DEFAULT JUDGMENT- whether judgment should be set aside- whether adjournment should be granted

Uniform Civil Procedure Rules 1999 (Q) r 290

R v Smith [2017] QCA 144

Yankee Doodles Proprietary Limited v Blemvale Proprietary Limited [1999] QSC 134

COUNSEL:

Self-represented defendant

Mr P. Beehre for the plaintiff

SOLICITORS:

Williams and Co solicitors for the plaintiff

HIS HONOUR: This is an application by the defendants to adjourn the hearing of an application to set aside default judgment. There is a cross-application by the plaintiff to dismiss the defendant’s application and alternatively, an application for security for costs. The defendant’s application was filed on the 1st of June 2017. The matter came before the Court on 30 June 2017. The first defendant indicated she wished to file more material in support of her application. At that stage, she did not have the consent of the public trustee to proceed, bearing in mind she is a prisoner serving in excess of three years imprisonment.

The matter was also mentioned on 13 July 2017 to see how things were going. An extension was given to the defendant to file certain documents and the matter came on for hearing today. Today, the first defendant informed me she had the consent of the public trustee, but she had no further material yet available, aside from a purported answer concerning a list of assets and liabilities. She applies for an adjournment. The plaintiff opposes this application and indeed applies for the defendant’s application to be dismissed. Is it in the interests of justice to grant the adjournment application and should I dismiss the defendant’s application? It is necessary to consider the background of this matter.

The plaintiff, Mr Houston, issued a claim and a statement of claim from the District Court on 1 December 2015, document 1. In the claim and statement of claim, the plaintiff claimed damages for money had and received by the first defendant to the plaintiff’s use by reason of her misappropriating his funds. There was a further claim for a declaration that he was entitled, as against the first defendant, for an equitable charge or lien to the value of the misappropriated funds over the property situated at 117 Carpenter Way, Sandstone Point Queensland. Further, he claimed to be able to trace the misappropriated funds and claimed damages in the amount sought. He further claimed damages for money had and received by the second defendant and a declaration that the second defendant held a sum equal to misappropriated funds upon a constructive trust in favour of the plaintiff and claimed a declaration…

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.

Continue reading Houston v Smith

Details

AGLC: Houston v Smith [2017] QDC 296
Case: [2017] QDC 296
Decision Date: 21 July 2017 (ex tempore)

CaseChat Overview and Summary

The case of Houston v Smith involved an application by the defendant, Smith, to set aside a default judgment entered against them by the plaintiff, Houston. The application was heard in the District Court of Queensland. The dispute centred on whether the court should set aside the default judgment and whether an adjournment should be granted to allow Smith to defend the claim. Smith argued that they had a bona fide defence to the claim and that there were reasonable prospects of successfully defending the action. The court was required to consider whether Smith had established a sufficient ground under rule 290 of the Uniform Civil Procedure Rules 1999 (Q) to set aside the default judgment and whether an adjournment should be granted under the same rule.

The court examined the criteria for setting aside a default judgment as set out in the relevant case law, including R v Smith and Yankee Doodles Proprietary Limited v Blemvale Proprietary Limited. The court noted that Smith had not demonstrated any sufficient ground for setting aside the judgment and that there was no evidence to suggest that Smith had a bona fide defence or that there were reasonable prospects of successfully defending the action. The court also considered the delay in making the application and the impact on the plaintiff, Houston. The court held that Smith had failed to establish a sufficient ground for setting aside the judgment and that an adjournment would not be in the interests of justice.

As a result, the court dismissed the application to set aside the default judgment and denied the request for an adjournment. The court's reasoning was based on the absence of any evidence to support Smith's claims of a bona fide defence and the unlikelihood of a successful defence. The court also considered the delay in making the application and the impact on the plaintiff. The orders of the court were that the application to set aside the default judgment and for an adjournment be dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Houston v Smith [2017] QDC 296
PARTIES:	JOHN MICHAL HOUSTON (plaintiff) v JAN MAREE SMITH (defendant)
FILE NO/S:	3415 of 2015
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	21 July 2017 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	30 June 2017, 13 and 21 July 2017
JUDGE:	Smith DCJA
ORDER:	Application dismissed
CATCHWORDS:	PRACTICE AND PROCEDURE- APPLICATION TO SET ASIDE DEFAULT JUDGMENT- whether judgment should be set aside- whether adjournment should be granted Uniform Civil Procedure Rules 1999 (Q) r 290 R v Smith [2017] QCA 144 Yankee Doodles Proprietary Limited v Blemvale Proprietary Limited [1999] QSC 134
COUNSEL:	Self-represented defendant Mr P. Beehre for the plaintiff
SOLICITORS:	Williams and Co solicitors for the plaintiff