Marjorie Agatha Battams v Anthony Percival Battams

[2010] QDC 519

[2010] QDC 519

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3582 of 2009

MARJORIE AGATHA BATTAMS	Plaintiff
and
ANTHONY PERCIVAL BATTAMS	Defendant

BRISBANE

..DATE 03/12/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 17, r 225(2)(b)

Immediate judgement against defendant in default under an order to make disclosure refused - circumstances justified a guillotine order should the defendant not provide disclosure within the further period specified.

HIS HONOUR:  The court makes a guillotine order in terms of the initialled draft in circumstances of the defendant's failure to comply with an order of Judge Botting's requiring disclosure to be made by the 23rd of November 2010.  Nothing has been done pursuant to that order.  The plaintiff is the 91-year-old mother of the defendant, claiming, with some assistance from another son who is her attorney, sums of money allegedly taken from an account over which the defendant had some authority, but not returned as it's alleged they should have been.  The application is for judgment against the defendant for a sum in excess of $80,000.  The application is justified by reference to rule 225(2)(b) which in terms does authorise a judgment against a defendant who is relevantly in default.  My approach has always been that it's one thing to enter judgment against a defaulting plaintiff who may reasonably suffer a potentially severe penalty for not doing what the rules and orders of the court require;  it's quite another thing to enter a judgment against a defendant who's in default in a similar way, the effect of which may be a substantial judgment against a defendant which could not otherwise be supported.

My practice has been, in circumstances such as the present where there's no attempt made to justify the defendant's
non-compliance, to offer a last chance by making a guillotine order which authorises the plaintiff to enter judgment if the requirement is not complied with within such further time as the court may allow.

In this case there are circumstances favourable to the plaintiff which include the terms of the defence which has been filed.  It is the common unsatisfactory one which asserts that the defendant doesn't know the true state of accounts and requires disclosure to be made before responding to the statement of claim.  The plaintiff has made disclosure and nothing further has been forthcoming.  The defendant's position doesn't appear promising.

Further, there is an affidavit from Michael Joseph Battams providing sworn evidence of the defendant's level of indebtedness which is said to arise with interest accretions under the Supreme Court Act on a sum of $59,240 an amount "appropriated and converted by the defendant".

...

HIS HONOUR:  A potentially complicating feature for the applicant is that there was no appearance by or for him before Judge Botting in contrast to the situation today, when the court's pleased to have the assistance of Ms Kidd from the town agents for the defendant's solicitors on the record.  Her presence relieved Mr Campbell from having to prove service of the application. The court has heard nothing to cast any doubt on the assertions in Ms Campbell's affidavit that immediately upon Judge Botting making his order on the 9th of November, that was served in the form of an unsealed copy by posting to the address for service in court records.  Not until the 24th of November 2010, it seems, was Ms Campbell in a position to post out a sealed copy.

Document 9 on the Court file is the sealed copy of the order dated the 16th of November 2010.  The possible scope for making an argument that the defendant's disclosure obligation under the order didn't arise until a sealed copy was provided is one factor in persuading the court to allow the defendant the same two week period Judge Botting considered appropriate from today to make good what Judge Botting required.

There are no difficulties about the defendant's becoming aware of today's order, given Ms Kidd's attendance.  She has informed the court that her principals are without instructions and that an application for leave to withdraw is likely.  For the moment the plaintiff, in my view, is entitled to rely on the principal's address as the appropriate means of communicating with the defendant.

...

HIS HONOUR:  The order provides as follows - and if you listen carefully, Mr Campbell, you'll pick up the extra bit about interest.

1. The defendant be allowed until 17 December 2010 to comply with the order of 9 November 2010 requiring him to make disclosure, failing which paragraph 2 of this order shall apply upon the filing of a solicitor's affidavit deposing to

such non-compliance.

1. The plaintiff have leave to enter judgment against the defendant for the amount of $85,120.80 together with interest as claimed under the Supreme Court Act and the costs of this proceeding on the standard basis, with the exception of the costs of and incidental to this application which shall be on the indemnity basis all costs to be assessed by a costs assessor appointed by the registrar of this honourable Court if not agreed.

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