Laminex Group Pty Ltd v Fresh Electrical & Data Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Laminex Group Pty Ltd v Fresh Electrical & Data Pty Ltd & Anor [2017] QDC 181

PARTIES:

LAMINEX GROUP PTY LTD

(plaintiff)

v

FRESH ELECTRICAL AND DATA PTY LTD

(first defendant)

and

MICHAEL JAMES MITCHELL

(second defendant)

FILE NO/S:

BD 894/2017

DIVISION:

PROCEEDING:

Request for default judgment

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

Request for default judgment referred by Registrar, without oral hearing

JUDGE:

McGill SC DCJ

ORDER:

Request for default judgment refused

CATCHWORDS:

PRACTICE – Default judgment – whether relief claimed within rules 283 – 287 – whether request for default judgment properly made to registrar – request refused. 

UCPR rr 283, 284, 287, 288.

Alexander v Ajax Insurance Co Ltd [1956] VLR 436 – followed.
Chen v Kevin McNamara & Son Pty Ltd (No. 2) [2012] VSCA 229 – applied.
Crane Distribution Ltd v Brown [2011] QSC 90 – followed.
IBM Australia Ltd v State of Queensland [2016] QSC 70 – considered.
Jackson v Arawak Holdings Pty Ltd [2016] QSC 133 – followed.
Platinum United II Pty Ltd v Secured Mortgage Management Ltd [2011] QCA 229 – applied.
Willmott v McLeay [2013] QCA 84 – applied.

COUNSEL:

SOLICITORS:

Turks Legal for the plaintiff

The defendants were not represented

1. On 13 March 2017 the plaintiff filed a claim and statement of claim against two defendants, which was served on 17 March 2017 on both defendants. No notice of intention to defend having been filed by either defendant, a request to the Registrar for default judgment was filed on 21 April 2017. On 11 May 2017, a Registrar referred the application for default judgment to the court constituted by a judge, on the ground that part of the amount claimed in the request for judgment was outside the scope of r 283. Hence the matter subsequently came before me.

1. On 13 June 2017 my associate communicated with the solicitors for the plaintiff seeking further information, which was provided in an email on 21 June 2017, which also enclosed a further affidavit, exhibiting what was deposed to be an application for credit account and agreement executed on 11 December 2015 by the first defendant, and a deed of guarantee and indemnity executed the same day by the second defendant.

The nature of the claim

1. By the claim the plaintiff claimed an amount of $101,197.10, a declaration that the second defendant granted an equitable charge over his interest in lands in respect of the amount of the indebtedness under the guarantee, interest in accordance with the credit agreement, and costs and expenses, including legal costs on an indemnity basis.  The statement of claim alleged that on or about 11 December 2015 the plaintiff entered into an agreement with the first defendant for the supply of goods on credit, that the plaintiff issued invoices in relation to goods supplied under the agreement between 6 September 2016 and 25 November 2016, and that invoices in the amount of $95,719.14…