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 2009, to provide their list of documents.  Once again they were ordered to pay costs on the standard basis.

The plaintiff's material indicates it has had trouble getting hold of the documents from the list which it requested copies of.  It has received none of them.

In the circumstances, an order is made in terms of the initialled draft, which amends one of the three alternative drafts that Mr Cocolas supplied to the Court.  I read into these remarks what it says as corrected, given the number of alterations, which include limiting what is to be delivered to "copies of" documents.

The guillotine aspect is an afterthought which Mr Cocolas proposed during the hearing, after he referred me to Peldan v Jones.

He had earlier referred to the Court's preparedness to make strong orders in respect of parties, including defendants, failing to make disclosure as required, by reference to Mango Boulevard Pty Ltd v Spencer [2008] QSC 117.

The order of the Court is that:

1. Pursuant to Rule 223(1)(a) of the Uniform Civil Procedure Rules 1999, the first, second defendants disclose to the applicant/plaintiff, documents numbered 1 to 46 and 48 to 49, contained in the list of documents of the first and second defendants, by delivering up to the applicant's solicitors, copies of those documents, within 14 days of service of a copy of this order, by posting to their address for service, allowing two business days for the course of post;

2. Failing compliance by a respondent with the foregoing, its or his defence and counter claim be struck out;

3. The first and second defendants pay the plaintiff's costs of and incidental to this application, to be assessed on an indemnity basis;

4. Liberty to apply.

If the steps foreshadowed the order come to fruition, then it is a case of the plaintiff having got itself into a position to seek to persuade the Registrar to proceed for a second time in this claim as on default.

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