Klaassen v Grand Mariner Resort

[2006] QDC 88

[2006] QDC 088

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RACKEMANN

No 322 of 2004

CORNELIUS WILHLEMUS KLAASSEN	Plaintiff
and
GRAND MARINER RESORT COMMUNITY TITLE SCHEME 4264	First Defendant
and
BRINDLE POST PTY LTD (ACN 070 141 187)	Second Defendant/ First Third Party
and
BMC GROUP PTY LTD (ACN 093 152 875)	Second Third Party

BRISBANE

..DATE 03/05/2006

JUDGMENT

HIS HONOUR:  These proceedings were commenced by claim on 4 June 2004 by the plaintiff, who claims damages for personal injuries against the first and second defendants in relation to a slip and fall accident on a ramp at a marina.  The first defendant seeks contribution or indemnity from the second defendant. 

Pursuant to leave obtained by an order of 13 September 2005, the second defendant has issued a third party notice to the second third party.  The second third party has not responded to those third party proceedings and the second defendant now seeks default judgment.  An earlier request for a Registrar to enter default judgment was refused.  I was not referred to any case directly on point. 

The default judgment sought is for damages and costs to be assessed pursuant to Rule 284 of the UCPR's. That rule applies to claims for unliquidated damages. Given the nature of the relief sought in the prayer for relief in the statement of claim, it would seem that Rule 288 might be the more appropriate rule pursuant to which any default judgment would be given. I will not delay on that issue at this point.

Both Rule 284 and Rule 288 fall within Division 2 of Part 1 of Chapter 9 of the UCPR's. That division applies, relevantly -

"If a defendant in a proceeding started by a claim does not file a notice of intention to defend within the time required under Rule 137."

The expression "defendant" is defined in Schedule 4 of the UCPR's to include a third party. The expression "claim" is defined relevantly, as a document under Chapter 2, Part 3, starting a proceeding. A third party notice is a document by which third party proceedings are commenced (See Rule 191(2)) but is not a claim. That, no doubt, explains the need for rules which apply certain provisions or parts of the UCPR's as if a third party notice were a claim (See eg Rule 191(3)).

It would seem that Division 2 of Part 1 of Chapter 9 applies to a defendant who defaults in responding to a claim, rather than a third party who does not respond to a third party notice.

It was submitted that Rule 197, which applies Chapter 5, including Rule 137, to a proceeding started by a third party notice is sufficient to attract Division 2 of Part 1 of Chapter 9 in the event of default, but I do not consider that is so.  Rule 197 only makes Chapter 5 applicable.  It does not purport to apply Division 2 of Part 1 of Chapter 9 to third party proceedings generally and I do not consider that it has that effect.

Part 6 of Chapter 6, which relates to the third party and similar proceedings, contains Rule 201 which expressly deals with default by a third party.

Rule 201(4) provides that "Chapter 9 Part 1 Division 2 applies for a third part procedure as if the third party notice were a claim, the defendant making the claim where a plaintiff and the third party were a defendant".  Such a provision would seem unnecessary if Chapter 9, Part 1, Division 2 otherwise applied to third party proceedings.

That provision is however, part of Rule 201 the scope of which is defined in Rule 201(1) as follows -

"(1) This Rule applies if -

(a) a default judgment is given for the plaintiff against the defendant by whom a third party was included; and

(b) the third party has not filed a notice of intention to defend or a defence."

In this case, Rule 201 does not apply because there has been no default judgment given for the plaintiff against the second defendant.  It was on this basis that the previous request for a default judgment was rejected and I consider rightly so. 

The application is dismissed.

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