Layton Corporation Pty Ltd v Healy

DISTRICT COURT OF QUEENSLAND

CITATION:

Layton Corporation Pty Ltd v Healy & Anor [2017] QDC 33

PARTIES:

LAYTON CORPORTION PTY LTD
(ACN 121 279 249)
(respondent/plaintiff)

v

JOHN HEALY
(applicant/first defendant)

and

REBECCA HEALY
(applicant/second defendant)

FILE NO/S:

3449/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2017

JUDGE:

Butler SC, DCJ

ORDER:

1.        Leave is granted for the filing of a notice of intention to defend and defence by no later than 4.00pm on 24 March 2017.

2.        If a notice of intention to defend and defence is filed by that time, the application is allowed and the default judgment of 12 October 2016 is set aside.

3.        The defendants pay the plaintiff’s costs of and incidental to the application.

CATCHWORDS:

PRACTICE – APPLICATION – DEFAULT JUDGMENT – SETTING ASIDE – where defendants made application to set aside default judgment pursuant to r 290 of the Uniform Civil Procedure Rules – whether defendants entitled to have default judgment set aside.

COUNSEL:

D. Fox solicitor for the plaintiffs.

P. Jeffery counsel for the defendants.

SOLICITORS:

Hewlett Legal for the plaintiffs.

John Woulfe Solicitors for the defendants.

1. The defendants make application pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (“the UCPR”) to set aside a default judgment entered against them on 12 October 2016.

Background

1. The proceeding was commenced against the defendants by a claim filed on 29 August 2016.  The plaintiff claimed:

“1.a sum in the nature of a debt due and owing under a loan agreement;

2.        interest pursuant to:

(a)       the loan agreement; or

(b) alternatively, s 58 of the Civil Proceedings Act 2011; and

3.        costs.” [1]

The plaintiff’s claim was for a sum of $172,849.74 plus interest and costs.

[1]Claim, filed 29 August 2016, page 1.

1. On 19 September 2016 the defendants filed a Conditional Notice of Intention to Defend alleging that the claim was out of jurisdiction, as having been filed in the wrong locality.  The jurisdictional point was misconceived.  The defendants were not legally represented at the time.

1. On 30 September 2016 the respondent wrote to the applicants advising them of the requirements of the rules where a Conditional Notice of Intention to Defend has been filed.  The letter advised the defendants that the jurisdictional point lacked substance and directed their attention to time limitations for further procedural steps.  The writer indicated the correspondence would be relied upon to apply for indemnity costs in the event of a further application being brought by the defendants.

1. The defendants took no further step in the proceeding.  On 12 October 2016 the respondent obtained default judgment in the sum of $172,849.72. Default judgement was available due to the defendants not having filed a defence within seven days of the conditional notice becoming unconditional.

1. On 6 February 2017 the defendants filed this application under r 290 of the UCPR requesting that the judgment by default be set aside and leave…