Interacto Ltd v. GDC Global Digital Cash Pty Ltd - [2009] QDC 257

[2009] QDC 257

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1074 of 2007

INTERACTCO LIMITED

Plaintiff

and

GDC GLOBAL DIGITAL CASH PTY LTD
(ACN 088 002 386)

and

GREGORY PATRICK EDWIN HANNAN

First Defendant

Second Defendant

BRISBANE

..DATE 29/06/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 5, r 223(1)(a), r 225(2)(b) - judgment against defendants failing to deliver copies of disclosed documents on request refused - guillotine order made striking out their pleadings in the event of non-compliance - indemnity costs awarded

HIS HONOUR: This is an application by the plaintiff for relief against the corporate defendant and the individual defendant as guarantor for a judgment under Rule 225(2)(b), for the defendants' failure to make disclosure by producing documents whose being in their possession they have confirmed, by an appropriate list. There are nearly 50 such documents.

For reasons similar to those indicated in Peldan v Jones [2008] QDC 111, I would not contemplate awarding a judgment to the plaintiff in the circumstances. As was indicated there, striking out a delinquent plaintiff's claim is a different thing from subjecting a defendant to a judgment which may be unjust for its failure to "play the game", as the Court's rules, even Court orders may contemplate.

I am persuaded to make a guillotine type order, however, against the possibility that the defendants fail to comply in a timely way with the order, which is sought in the alternative and will be made, requiring the defendants to deliver the documents under Rule 223(1)(a).

The defendants, who are sued in respect of failure to repay what remains owing in respect of a loan of $50,000 (U.S.), have hardly been cooperative in the way that Rule 5, which applies to defendants as well as plaintiffs, envisages. Indeed, the plaintiff obtained a default judgment for $68,550.29, inclusive of costs and interest, on 9 July 2007.

It does not appear clearly from the Court file how the judgment was set aside, but that plainly occurred. The matter went to pleadings with the defendants acting in person. Each filed a defence and counterclaim on the 1st of August 2007. The plaintiff followed with a reply and answer.

The matter was before Judge Searles on the 22nd of November 2007, when it was ordered, according to the Court's order sheet, that the present defence and counterclaim be struck out, with leave to re-plead. The "defendant/applicant" was ordered to pay costs on the standard basis. It is also noted: "application to set aside judgment be adjourned to a date to be brought on, on two days' notice".

Anning Lawyers, on the 6th of November 2007, had filed a notice of appointment of solicitor in respect of both defendants. That arrangement did not last long, as on the 26th of August 2008, Mr Hannan filed a notice of parties acting in person, indicating that his address at Thornlands was that for both defendants.

They had to be forced by an order of Judge Tutt's, on the 2nd of February…

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 257
Decision Date: 29 June 2009

CaseChat Overview and Summary

In the case of Interacto Ltd v GDC Global Digital Cash Pty Ltd, the plaintiff, Interacto Ltd, sought relief against the defendants, GDC Global Digital Cash Pty Ltd and Gregory Patrick Edwin Hannan, for their failure to disclose documents as required by the court. The defendants had been ordered to deliver copies of disclosed documents, but had not done so. The plaintiff applied for relief under Rule 225(2)(b) of the Uniform Civil Procedure Rules, which allows for a judgment against a party who fails to comply with a court order to disclose documents. The court was required to decide whether it was appropriate to award a judgment against the defendants for their failure to disclose documents, and if not, what alternative relief could be granted. The court found that awarding a judgment against the defendants would not be appropriate, as it could result in an unjust outcome for them. Instead, the court made a guillotine order, requiring the defendants to deliver the documents within 14 days of the order being served. If the defendants failed to comply with the order, their defence and counterclaim would be struck out. The court also ordered the defendants to pay the plaintiff's costs of the application on an indemnity basis. The court's decision was based on the need to encourage parties to comply with court orders and the importance of following the rules of court, even for defendants. The court emphasised that it was not prepared to subject the defendants to a judgment that may be unjust for their failure to comply with the rules.

The court's decision in this case highlights the importance of following court orders and complying with the rules of court, even for defendants. The court recognised that awarding a judgment against the defendants for their failure to disclose documents could result in an unjust outcome for them, and instead chose to make a guillotine order that required the defendants to deliver the documents within a specified timeframe. The court also emphasised the need to encourage parties to comply with court orders and the rules of court, and ordered the defendants to pay the plaintiff's costs on an indemnity basis. This case serves as a reminder to all parties involved in legal proceedings to take court orders and the rules of court seriously, and to make every effort to comply with them. Failure to do so can result in serious consequences, including the striking out of pleadings and the award of costs on an indemnity basis.

Orders