Nebo Service Centre Pty Ltd v Maund

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Nebo Service Centre Pty Ltd v Maund [2017] QMC 5

PARTIES:

Nebo Service Centre Pty Ltd
(Judgment creditor/respondent)

v

Ronald Earle Maund & Karen-Lee Maund
(Judgment debtors/applicants)

FILE NO/S:

M233/14

DIVISION:

Magistrates Court

PROCEEDING:

Civil

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

12 May 2017

DELIVERED AT:

Toowoomba

HEARING DATE:

27 April 2017

MAGISTRATE:

G Lee

ORDER:

Application dismissed

CATCHWORDS:

Procedure – Queensland – Practice under rules of Court – Orders made on Summary judgment – application to set aside or stay

LEGISLATION:

The following legislation was cited:

Uniform Civil Procedure Rules, rr.300, 668, 800 & 819.

Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2

The following cases are cited:

180 Capital Finance Pty Ltd v Coomer & Anor [2010] QCS 116

Kleiner v Ross (No 2) [2009] QDC 239

Lee v Abedain [2017] QSC 22

Paradise Grove Pty Ltd v Stubberfield [2002] QCS 3

Rockett v The Proprietors of “The Sands” BUP 82 [2001] QCA 99

State Bank of Victoria v Parry [1989] WAR 240.

COUNSEL:

Mr P G Jeffrey of counsel for the applicant judgment debtors.

Mr D Edwards of counsel for the respondent judgment creditor (direct access)

SOLICITORS:

Wonderley & Hall Solicitors for the applicant judgment debtors

1. By application filed 10 April 2017 Ronald and Karen-Lee Maund (the Applicants) seek relief under various rules of the Uniform Civil Procedure Rules 1999 (UCPR) as follows:

· That, pursuant to rule 668 UCPR, the order made on 2 July 2015 after a summary judgment application that “by consent …the [Applicants] pay the [Respondent] $102,600 inclusive of interest, costs and reserved costs on or before 31 July 2015 failing which the respondent is at liberty to enter judgment…” and the consequent entering of that judgment on 25 August 2015 be set aside.

· Alternatively, pursuant to rules 300 and 800 UCPR, the enforcement of the above order and judgment be stayed.

· Alternatively, pursuant to rule 819 UCPR, the enforcement warrant issued 15 April 2016 be set aside or stayed.

1. The application under rule 819 UCPR was withdrawn at the hearing because the warrant that issued 15 April 2016 expired 14 April 2017[1].

   [1] Para [6] submissions for the applicants. Section 91 Civil Proceedings Act 2011 relevantly provides that an enforcement warrant ends one year after it issues. It appears no application was made for renewal of that warrant under rule 821 UCPR.

1. The Applicants have not appealed the consent order or the judgment.

1. The Applicants, who are horse trainers, rely on the affidavit of Ronald Earle Maund sworn 10 April 2017 and an affidavit of solicitor Mary-Anne Ewart Ole sworn 21 April 2017. The latter relates to service of the application and supporting material on the Respondent. Mr Jeffrey of counsel also provided written submissions dated 27 April 2017.

1. The Respondent relies on the affidavit of Evan John Hartley sworn 27 April 2017[2]. He, together with his wife Joan Hartley, are the only directors and shareholders of the Respondent and another company…