Lincom Equipment Rentals P/L v Archer River Quarries P/L

[2011] QMC 52

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Lincom Equipment Rentals P/L v Archer River Quarries P/L [2011] QMC 52

PARTIES:

LINCOM EQUIPMENT RENTALS PTY LTD

(plaintiff)

v

ARCHER RIVER QUARRIES PTY LTD

(defendant)

FILE NO/S:

M50008/11

DIVISION:

Magistrates Court

PROCEEDING:

Application to set aside default judgment

ORIGINATING COURT:

Magistrates Court at Mareeba

DELIVERED ON:

9 December 2011

DELIVERED AT:

Mareeba

HEARING DATE:

5 December 2011

MAGISTRATE:

Braes TJ

ORDER:

A.The default judgement entered against the defendant on 7 October 2011 is set aside; 

B.  I order the plaintiff pay the defendants costs of the application set at $535;

C.  The defendant must file and serve its defence and counter claim on or before 23 December 2011.

CATCHWORDS:

CIVIL LAW – PRACTICE AND PROCEDURE - default judgment - electronic lodgements - setting aside

Uniform Civil Procedure Rules 1999, r 975H

COUNSEL:

SOLICITORS:

1. This is an application by the defendant to set aside default judgment entered on 7 October 2011.

1. The claim and statement of claim were lodged electronically on 22 August 2011.

1. A Request for Judgement, and affidavit in support were filed on 7 October 2011.

1. In his affidavit of the 3 November 2011 Mr Spartalis Solicitor for the applicant says he wrote to the plaintiff’s solicitors on 6 September 2011 requesting further and better particulars of the plaintiff’s statement of claim, and that on 19 September 2011 he telephoned the plaintiff’s solicitor Mr Gregg to confirm he had received the request for particulars. Mr Gregg confirmed to Mr Spartalis he had received the request for particulars and he had sought the documents requested from his client.

1. Mr Spartalis spoke with Mr Gregg on or about the 14 October 2011 and apologised for the delay in filing of the defendant’s defence and counter claim.  Although judgment had been entered on 7 October 2011 Mr Gregg made no mention of that fact during this conversation. It was not until Mr Spartalis sought to file the defence and counter claim in the Mareeba Magistrates Court Registry on the 31 October 2011 that he was advised that judgement had been entered against the defendant.

1. The further and better particulars have never been provided.

1. In answer to the application the plaintiff argues primarily that the defendant has no proper defence to the claim and that if the defendant has a counter claim that counter claim should be litigated separately.  Mr Gregg’s argument being that the terms of the contract entered into between the parties exclude the implied terms that the defendant says the contract was subject to.

1. I have read the statement of claim, defence and counter claim, affidavits and submissions relied upon by both parties to this application. I have had regard to the Uniform Civil Procedure Rules 5, 280, 282, 283, 290 and 975H.

1. The first issue to be decided by me is whether or not the default judgement was regularly entered. If I find that the judgment was regularly entered then I should give consideration to the principles regarding setting aside judgment which are conveniently set out in the annotations to Rule 290 in Butterworths Civil Procedure Queensland.

1. If I should determine that the judgment was irregularly entered then my discretion must be exercised to set aside the irregularly entered judgement.

1. The Rules which is applicable to making a request for an electronic judgment are 283 and 975H. Rule 282 does not apply, unless the court, as constituted by a Registrar, orders otherwise. I found no evidence to suggest the Registrar ordered that Rule 282 was to apply.

1. An affidavit of service was not lodged with the request for judgment.

1. When making the request the plaintiff lodged a “REQUEST FOR DEFAULT JUDGMENT” and an AFFIDAVIT TO SUPPORT A REQUEST FOR DEFAULT JUDGMENT” sworn on the 7 October 2011 by Margaret Burstall collection agent for the Plaintiff.

1. Although it is not a requirement that an affidavit of service or an affidavit of debt be lodged with the Request for Judgment, the approved entity for the Plaintiff must have at the time the Request for Judgment is electronically filed, an affidavit of service and an affidavit of debt. Rule 975H(3).

1. Rule 975H(4) provides that the request for judgement must: be prepared in a way that would result in the request complying with the approved form if a paper copy were made of the request and unless Rule 282 applies, include the following details obtained from the affidavit of service –

1.        The full name of the person who served the claim;

2.        The time, day, date and place of service of the claim on the defendant;

3.        The manner of service on the defendant;

4.         How the defendant was identified;

5.        The name of the person before whom the affidavit was sworn;

6.        The date and place the affidavit was sworn;

and include the following details obtained from the affidavit of debt –

1.        The full name of the person who made the affidavit;

2.        Whether the debt is still owing;

3.        If some payment has been made when payment was made the amount of the payment and how much of the debt is still owing;

4.       The name of the person before whom the affidavit was sworn;

5.       The date and place the affidavit was sworn.

1. The Request for Judgment does not comply with Rule 975H(4). None of the information required to be included in the Request for Judgment has been included.

1. The Request for Judgment does refer to an affidavit of service of Margaret Burstall said to be filed with it. That affidavit was not filed with the Request for Judgment..  Whether the filing of an affidavit of service with the Request for Judgment would comply with the provisions of Rule 975H(4)in circumstances where Rule 282 does not apply is debatable. It would appear to me that the filing of an affidavit would not satisfy the requirements of Rule 975H (4).  There would be no point filing an affidavit of service unless the Registrar had made an order pursuant to Rule 975H (3) requiring the affidavit of service be filed.

1. The Request for Judgment filed also does not comply with Rule 975H(4) in respect of the details which are to be obtained from the affidavit of debt and included in the Request for Judgment. An affidavit of Margaret Burstall was filed with the Request for Judgement.  It is debatable whether the filing of a affidavit of this nature with the Request for Judgment would satisfy the requirements of Rule 975H(4).It would appear to me that the filing of a separate affidavit of debt would not satisfy the requirement of Rule 975H(4). Certainly on this occasion the affidavit of debt would not be regarded as meeting the requirements set out in that Rule.

1. The requirement under Rule 975H(4) is that the detail prescribed to be taken from the affidavit of service and the affidavit of debt is to be included in the Request for Judgment.

1. Because the Plaintiff has failed to comply with the requirements of Rule 975H(4) I find that judgment was irregularly entered and therefore I must exercise my discretion in favour of the applicant and set aside the default judgment.

1. Had I determined that the judgment been entered regularly nevertheless I would have set it aside. The plaintiff’s solicitor had received a request for further and better particulars from the defendant’s solicitors but had notwithstanding that request and without any prior notice or warning to the defendant’s solicitors entered judgment against the defendant.  I am also satisfied that the defendant has a substantial ground of defence and should therefore be afforded the opportunity to litigate it.

1. ORDERS.

A.         The default judgement entered against the defendant on 7 October 2011 is set aside;

B.I order the plaintiff pay the defendants costs of the application set at $535;

C.The defendant must file and serve its defence and counter claim on or before 23 December 2011.