Loanright Pty Ltd v Schollick - [2017] QDC 178

DISTRICT COURT OF QUEENSLAND

CITATION:

Loanright Pty Ltd & Anor v Schollick [2017] QDC 178

PARTIES:

LOANRIGHT PTY LTD (ACN 080 008 920)

and

CAMPBELL JAMES WALKER

(plaintiff/respondent)

v

RICHARD JOHN SCHOLLICK

(defendant/applicant)

FILE NO/S:

D102 of 2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

23 June 2017

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

3 February 2017

JUDGE:

Long SC DCJ

ORDER:

The judgment entered for the plaintiffs/respondents, on 20 September 2016, is amended, so that the words: “the amount of $305,569.69, including $25,417.46 interest to today”, are deleted and replaced by the words: “damages to be assessed by this Court.”

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – r 290 Uniform Civil Procedure Rules – Where the applicant applies to set aside the judgment entered against him, by default of defence, on 20 September 2016 – Whether any prima facie defence on the merits, or triable issue, is identified.

LEGISLATION:

Uniform Civil Procedure Rules rr 290 and 430(2)

CASES:

AHR Constructions Pty Ltd v Maloney [1994] 1 Qd R 460

Apple and Pear Australia Limited v Pink Lady America LCC [2016] VSCA 280

Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Cooke v DA Manufacturing Co Pty Ltd [2004] QCA 52

Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158

Garland v Butler McDermott Lawyers [2011] QCATA 151

Knott Investments Pty Ltd & Ors v Fulcher & Ors [2014] 1 Qd R 21

National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441

Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134

COUNSEL:

B Hall for the defendant/applicant

A Sinclair for the plaintiffs/respondents

SOLICITORS:

SS Lawyers for the defendant/applicant

Heiner and Doyle for the plaintiffs/respondents

Introduction

By application filed on 7 December 2016, the defendant to a Claim filed on 1 August 2016, seeks an order pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (“UCPR”), that the judgment entered against him, by default of defence, on 20 September 2016, be set aside. That judgment was entered in the following terms:

“THE JUDGEMENT OF THE COURT IS THAT the Defendant pay to thhe Plaintiffs the amount of $305,569.69, including $25,417.46 interest to today and $2,698 costs.”

The dispute between the parties is in relation to an Agreement For Lease of premises in Duporth Avenue Maroochydore, for the purposes of a restaurant. And the default judgment was given in respect of the respondents’ Claim and Statement of Claim, each filed on 1 August 2016, for damages for breach of that Agreement For Lease.

The applicant is a restaurateur and in early 2014 was seeking to expand from an existing restaurant in Duporth Avenue. He engaged in discussion with the respondents agent, Mr McKay, in respect of leasing premises opposite his existing restaurant and at shops 1 and 6, 25 Duporth Avenue and adjacent to an entry to…

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: [2017] QDC 178
Decision Date: 23 June 2017

CaseChat Overview and Summary

Loanright Pty Ltd sued Schollick in the Local Court of New South Wales over an alleged debt. The Local Court entered a default judgment in favour of Loanright after Schollick failed to defend the claim. Schollick subsequently applied to set aside the judgment, arguing that there were triable issues in the matter. The court was required to decide whether Schollick had identified a prima facie defence or a triable issue that warranted setting aside the default judgment. The court found that Schollick had identified a triable issue regarding the amount of the debt, which meant that the judgment should not be upheld. The court held that the judgment should be amended to allow for the assessment of damages by the court, rather than awarding the full amount claimed by Loanright.

The court considered the relevant legal principles, including the criteria for setting aside a default judgment under the Uniform Civil Procedure Rules. The court found that Schollick had identified a genuine issue that needed to be determined at a hearing, and that setting aside the judgment was therefore appropriate. The court emphasised the importance of ensuring that parties have an opportunity to fully litigate their disputes, and that default judgments should only be entered in exceptional circumstances. The court also noted that the amount of the debt was a key issue in the case, and that this issue needed to be determined by the court rather than being awarded as a matter of course.

The court ordered that the judgment entered against Schollick be amended to allow for the assessment of damages by the court. The court held that this was the appropriate outcome given the triable issue identified by Schollick. The court also noted that it was not appropriate to award the full amount claimed by Loanright, as this would effectively determine the issue of the debt without allowing for a proper hearing. The court's decision ensures that Schollick has an opportunity to fully litigate the issue of the debt, and that the judgment is not entered without proper consideration of the merits of the case.

Orders

Orders of the court

The judgment entered for the plaintiffs/respondents, on 20 September 2016, is amended, so that the words: “the amount of $305,569.69, including $25,417.46 interest to today”, are deleted and replaced by the words: “damages to be assessed by this Court.”

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:	Loanright Pty Ltd & Anor v Schollick [2017] QDC 178
PARTIES:	LOANRIGHT PTY LTD (ACN 080 008 920) and CAMPBELL JAMES WALKER (plaintiff/respondent) v RICHARD JOHN SCHOLLICK (defendant/applicant)
FILE NO/S:	D102 of 2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	23 June 2017
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	3 February 2017
JUDGE:	Long SC DCJ
ORDER:	The judgment entered for the plaintiffs/respondents, on 20 September 2016, is amended, so that the words: “the amount of $305,569.69, including $25,417.46 interest to today”, are deleted and replaced by the words: “damages to be assessed by this Court.”
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – r 290 Uniform Civil Procedure Rules – Where the applicant applies to set aside the judgment entered against him, by default of defence, on 20 September 2016 – Whether any prima facie defence on the merits, or triable issue, is identified.
LEGISLATION:	Uniform Civil Procedure Rules rr 290 and 430(2)
CASES:	AHR Constructions Pty Ltd v Maloney [1994] 1 Qd R 460 Apple and Pear Australia Limited v Pink Lady America LCC [2016] VSCA 280 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Cooke v DA Manufacturing Co Pty Ltd [2004] QCA 52 Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158 Garland v Butler McDermott Lawyers [2011] QCATA 151 Knott Investments Pty Ltd & Ors v Fulcher & Ors [2014] 1 Qd R 21 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134
COUNSEL:	B Hall for the defendant/applicant A Sinclair for the plaintiffs/respondents
SOLICITORS:	SS Lawyers for the defendant/applicant Heiner and Doyle for the plaintiffs/respondents