Kumar v Ernst - [2021] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION:

Kumar v Ernst [2021] QCA 260

PARTIES:

PRAVEEN KUMAR
(appellant)
v
MELISSA LEE ERNST
(respondent)

FILE NO/S:

Appeal No 11891 of 2020
Appeal No 13472 of 2020
DC No 9216 of 2018
SC No 9216 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 258 (Jarro DCJ)
Supreme Court at Brisbane – Unreported, 19 November 2020 (Applegarth J)

DELIVERED ON:

30 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2021

JUDGES:

Sofronoff P and Fraser and Mullins JJA

ORDERS:

1. The appeal in CA No 11891 of 2020 is dismissed with costs.

2. The appeal in CA No 13472 of 2020 is dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where the appellant, a surgeon, was consulted by, and conducted a surgical procedure upon, the respondent – where the respondent sued the appellant for breach of contract or negligence – where upon application by the respondent upon the ground that the appellant had not filed a notice of intention to defend, a default judgment was given in favour of the respondent – where the primary judge dismissed an application filed by the appellant to set aside the default judgment – where the appellant contends he was entitled to have the default judgment set aside upon the ground that it was irregularly entered because he had not been duly served with the respondent’s claim and statement of claim – where, in the alternative, if the Court finds the default judgment was regularly entered, the appellant contends the primary judge erred by not exercising the discretion to set aside the default judgment – whether the default judgment was irregularly entered and should have been set aside on that ground– whether, in the alternative, the primary judge erred in exercising his discretion to not set aside the default judgment

Uniform Civil Procedure Rules 1999 (Qld), r 110, r 389

Embrey v Smart[2014] QCA 75, cited
Evans v Bartlam [1937] AC 473, cited
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, cited
Saunders v Hammond [1965] QWN 39, cited

COUNSEL:

No appearance for the appellant
T Matthews QC, with P B de Plater, for the respondent

SOLICITORS:

No appearance for the appellant
Gouldson Legal for the respondent

SOFRONOFF P: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.
FRASER JA: In 2013 the appellant, a surgeon, was consulted by, and conducted a surgical procedure upon, the respondent. The respondent subsequently embarked upon the pre-litigation procedure required by the Personal Injuries Proceedings Act 2002 (Qld) and successfully applied for an extension of the limitation period applicable to a claim against the appellant. On 29 August 2018 the respondent filed a claim and statement of claim in which she claimed damages for personal…

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 Kumar v Ernst

Details

AGLC: Kumar v Ernst [2021] QCA 260
Case: [2021] QCA 260
Decision Date: 30 November 2021

CaseChat Overview and Summary

Kumar v Ernst is a case where the appellant, a surgeon, was sued by the respondent for breach of contract or negligence after a surgical procedure. The respondent applied for a default judgment after the appellant did not file a notice of intention to defend, leading to the primary judge granting the default judgment in favour of the respondent. The appellant then applied to set aside the default judgment, claiming that he was not properly served with the respondent’s claim and statement of claim, which rendered the judgment irregular. Alternatively, the appellant argued that even if the judgment was regular, the primary judge should have exercised their discretion to set it aside.

The court was required to determine whether the default judgment was irregularly entered due to the appellant not being duly served with the respondent’s claim and statement of claim. If the court found that the judgment was regular, the next issue was whether the primary judge erred in exercising their discretion to not set aside the default judgment.

The court found that the appellant’s claims regarding the irregularity of the default judgment were unfounded as the service of the claim and statement of claim was valid. The court also found that the primary judge did not err in exercising their discretion to not set aside the default judgment as the appellant did not demonstrate any grounds for relief from the consequences of the default judgment. The appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal in CA No 11891 of 2020 is dismissed with costs.

2. The appeal in CA No 13472 of 2020 is dismissed with costs.

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:	Kumar v Ernst [2021] QCA 260
PARTIES:	PRAVEEN KUMAR (appellant) v MELISSA LEE ERNST (respondent)
FILE NO/S:	Appeal No 11891 of 2020 Appeal No 13472 of 2020 DC No 9216 of 2018 SC No 9216 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2020] QDC 258 (Jarro DCJ) Supreme Court at Brisbane – Unreported, 19 November 2020 (Applegarth J)
DELIVERED ON:	30 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2021
JUDGES:	Sofronoff P and Fraser and Mullins JJA
ORDERS:	1. The appeal in CA No 11891 of 2020 is dismissed with costs. 2. The appeal in CA No 13472 of 2020 is dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where the appellant, a surgeon, was consulted by, and conducted a surgical procedure upon, the respondent – where the respondent sued the appellant for breach of contract or negligence – where upon application by the respondent upon the ground that the appellant had not filed a notice of intention to defend, a default judgment was given in favour of the respondent – where the primary judge dismissed an application filed by the appellant to set aside the default judgment – where the appellant contends he was entitled to have the default judgment set aside upon the ground that it was irregularly entered because he had not been duly served with the respondent’s claim and statement of claim – where, in the alternative, if the Court finds the default judgment was regularly entered, the appellant contends the primary judge erred by not exercising the discretion to set aside the default judgment – whether the default judgment was irregularly entered and should have been set aside on that ground– whether, in the alternative, the primary judge erred in exercising his discretion to not set aside the default judgment Uniform Civil Procedure Rules 1999 (Qld), r 110, r 389 Embrey v Smart[2014] QCA 75, cited Evans v Bartlam [1937] AC 473, cited National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, cited Saunders v Hammond [1965] QWN 39, cited
COUNSEL:	No appearance for the appellant T Matthews QC, with P B de Plater, for the respondent
SOLICITORS:	No appearance for the appellant Gouldson Legal for the respondent