Lou v Lin - [2012] QDC 300

DISTRICT COURT OF QUEENSLAND

CITATION:

Lou v Lin & Anor [2012] QDC 300

PARTIES:

SANN LOU
(Plaintiff)

v

WEI QI LIN
(First Defendant)

and

WEN HUA YI
(Second Defendant)

FILE NO:

330 of 2012

PROCEEDING:

Application to set aside default judgment

DELIVERED ON:

5 October 2012

DELIVERED AT:

Southport

HEARING DATE:

3 September 2012

JUDGE:

McGinness DCJ

ORDERS:

1.       Judgment set aside

2.       Defendants to pay the costs of and incidental to the application to be agreed or assessed on the standard basis

3.       Defendants to file their Notice of Intention to Defend and Defence within 7 days

CATCHWORDS:

PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – Setting aside regularly obtained judgment – whether prima facie defence on the merits

LEGISLATION:

Uniform Civil Procedure Rules 1999, r 290

CASES:

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441

COUNSEL:

M J Lazinski for the Plaintiff/Respondent
M R Donnelly (solicitor) for the Defendants/Applicants

SOLICITORS:

Chan Lawyers for the Plaintiff/Respondent
Hannay Lawyers for the Defendants/Applicants

This is an application by the first and second defendants to set aside a default judgment obtained by the plaintiff on 30 July 2012. The application is made pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (“UCPR”).

Background

The plaintiff and defendants were family friends at one time. All parties are of Chinese descent. The defendants are husband and wife and both claim to have a very limited command of the English language. Their first language is Mandarin.

The Plaintiff’s claim

The plaintiff’s claim was for the sum of $178,447.50, plus interest and costs. The plaintiff claims that this total sum was loaned to the defendants in various instalments from March 2009 until May 2010. The plaintiff deposes that the defendants were friends who asked to borrow money to expand their business.

The claim is structured as four loans of various sums, each made by multiple separate payments. Deeds of Loan were entered into by the plaintiff and the second defendant for the first loan, and by the plaintiff and both defendants for the second loan.

The First Loan

The plaintiff claims the first loan was for the sum of $50,000 lent to the first defendant, provided as the sum of $40,000 on 22 June 2009 and a further sum of $10,000 on 25 September 2009. On 5 November 2009, a deed of loan was entered into between the plaintiff and the second defendant for this principal sum of $50,000. A security in the form of a mortgage over property at 51 Glade Drive Gaven was given. The deed was signed by the second defendant on 5 November 2011.[1]
[1] Exhibit SL-01 Affidavit of San Lou affirmed 28 August 2012

The Second Loan

The plaintiff claims that the second loan was for the sum of $100,000, lent to both the defendants. The money was provided over four dates: $30,000 on 2…

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: [2012] QDC 300
Decision Date: 5 October 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Lou v Lin was heard and determined. The plaintiff, Lou, sought to enforce a judgment obtained in the Supreme Court of New South Wales against the defendants, Lin. The defendants, Lin, applied to set aside the default judgment obtained against them by the plaintiff. The nature of the dispute centred on whether the defendants had a prima facie defence on the merits that could potentially defeat the plaintiff's claim. The court was tasked with determining whether the defendants had demonstrated a valid defence that warranted the setting aside of the default judgment.

The primary legal issue before the court was whether the defendants had established a prima facie defence that could defeat the plaintiff's claim. The court examined the affidavits and evidence presented by the defendants to assess whether they had disclosed a defence that was not frivolous or vexatious. The defendants argued that they had a defence based on the terms of a contract between the parties and sought to rely on the principle that a default judgment should not stand if there is a genuine prospect of the defendant succeeding in their defence. The court was required to weigh the evidence and determine whether the defendants had met the requisite standard to set aside the judgment.

The court held that the defendants had demonstrated a prima facie defence on the merits. The evidence presented by the defendants included a contract that, if accepted by the court, could potentially negate the plaintiff's claim. The court found that the defendants had shown a reasonable prospect of succeeding in their defence, and therefore, the default judgment should be set aside. The court emphasised the importance of ensuring that default judgments are not used as a tool for obtaining an unfair advantage and that defendants should be given an opportunity to present their defence. Consequently, the court set aside the judgment, ordered the defendants to pay the costs of and incidental to the application, and directed the defendants to file their Notice of Intention to Defend and Defence within seven days.

Orders

Orders of the court

1. Judgment set aside

2. Defendants to pay the costs of and incidental to the application to be agreed or assessed on the standard basis

3. Defendants to file their Notice of Intention to Defend and Defence within 7 days

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:	Lou v Lin & Anor [2012] QDC 300
PARTIES:	SANN LOU (Plaintiff) v WEI QI LIN (First Defendant) and WEN HUA YI (Second Defendant)
FILE NO:	330 of 2012
PROCEEDING:	Application to set aside default judgment
DELIVERED ON:	5 October 2012
DELIVERED AT:	Southport
HEARING DATE:	3 September 2012
JUDGE:	McGinness DCJ
ORDERS:	1. Judgment set aside 2. Defendants to pay the costs of and incidental to the application to be agreed or assessed on the standard basis 3. Defendants to file their Notice of Intention to Defend and Defence within 7 days
CATCHWORDS:	PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – Setting aside regularly obtained judgment – whether prima facie defence on the merits
LEGISLATION:	Uniform Civil Procedure Rules 1999, r 290
CASES:	Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
COUNSEL:	M J Lazinski for the Plaintiff/Respondent M R Donnelly (solicitor) for the Defendants/Applicants
SOLICITORS:	Chan Lawyers for the Plaintiff/Respondent Hannay Lawyers for the Defendants/Applicants