Leo Muller Motors Pty Ltd v Bancroft - [2001] QDC 60

DISTRICT COURT OF QUEENSLAND
[2001] QDC 060

PARTIES: LEO MULLER MOTORS PTY LTD Appellant
And
STEPHEN PAUL BANCROFT Respondent
FILE NO: D4810 OF 2000
DELIVERED ON: 2001
DELIVERED AT: Brisbane
JUDGE: Judge Forno Q.C.
REASONS FOR DECISION

This is an appeal against a decision of a Stipendiary Magistrate in Brisbane by
which she dismissed an application pursuant to rule 290 of the Uniform Civil
Procedure Rules to set aside summary judgment regularly obtained in default of
defence.
In a valiant attempt to identify separate matters to which she should be turning her
mind and to marshall what seems to have been undisciplined early submissions into
some logical order, the learned stipendiary magistrate during argument said :-
“Firstly, there is the explanation for the failure to file … the explanation of the failure to file the defence in time … and then there is the other leg of it … . the merits of the defence.” (page 5 primary hearing transcript certified has having taken place on 21 March 2000 and which the magistrate referred to in reasons about costs on 21 December 2000 as having occurred on 27 March 2000.)
As statements identifying broad categories of relevant areas needing careful
attention, one could not cavil with the magistrate’s language, and counsel understandably did not cavil at the time. However, very soon afterwards, indeed at
the end of the same page of the transcript, Mr J. P. Murphy of counsel, who
appeared below for the respondent as well as before me submitted:-
“One of the considerations … is whether there is or is not a reasonable excuse for the delay in filing a notice of intention to defend and the defence in this case.” (My underlining).
It is misleading at the very least to speak of the requirements to provide an
explanation as being a requirement to advance a “reasonable excuse”. It is the
position that once an explanation is provided, it may be necessary for the court to
look at the nature of it in the process of assessing what the justice of the situation
requires. Whilst the requirement of the providing of an explanation is not absolute,
the failure to provide one in an individual case may tip the scales against a proposed
defendant. On the other hand, in another case, it may be overwhelmingly plain that
the justice of the situation requires that a defendant be allowed the opportunity of a
trial.
The very next thing that Mr Murphy submitted (at the top of page 6 of the same
transcript) was :-
“And the second matter which is relevant to the discretion … is whether there is a sufficiently meritorious defence.” (my underlining).
Such an expression as well in my view is misleading at the very least.
I mention these matters because in my view they may serve to explain how the
magistrate fell into error in some respects.
Dealing with the requirement for an explanation at page 3, line 10 of the transcript
of her decision dated…

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.

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Details

Case: [2001] QDC 60
Decision Date: 21 December 2000

CaseChat Overview and Summary

Leo Muller Motors Pty Ltd v Bancroft [2001] QDC 060 involves an appeal against the dismissal of an application by the defendant, Stephen Paul Bancroft, to set aside a summary judgment obtained by default by the plaintiff, Leo Muller Motors Pty Ltd. The appeal was heard in the District Court of Queensland by Judge Forno Q.C. The primary issue before the court was whether the magistrate erred in her assessment of the defendant's explanation for the delay in filing a defence and in evaluating the merits of the defence. Additionally, the court needed to determine if the magistrate correctly applied the criteria for setting aside a default judgment.

The court found that the magistrate erred in her approach by evaluating the evidence as if she were the tribunal of fact, rather than considering the explanation and merits of the defence in the context of the discretion to set aside a default judgment. The magistrate also seemed to confuse the requirements of showing a prima facie case on the merits with needing to demonstrate a "meritorious defence". The court held that the magistrate's assessment strayed into weighing the evidence, which was impermissible in this context.

Regarding the merits of the defence, the court found that the magistrate correctly identified that the defence did not show a prima facie case on the merits concerning the alleged defect in the vehicle. However, the court held that the magistrate erred in disbelieving the defendant's evidence regarding the lack of representations made by the salesperson. The court concluded that the plaintiff's version of the facts, if believed, could demonstrate a prima facie case on the merits.

The court dismissed the appeal concerning the setting aside of the default judgment but found that the magistrate miscarried her discretion in awarding indemnity costs. The court quashed the indemnity costs order and ordered that the defendant pay the plaintiff's costs on the standard basis for the specified appearances.

Orders