Nel v Dwyer Corporation Pty Ltd - [2019] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Nel v Dwyer Corporation Pty Ltd [2019] QDC 143

PARTIES:

MARIA JOHANNA NEL (Plaintiff)

v

DWYER COROPORATION PTY LTD ACN 010 839 139 TRADING AS DWYER QUALITY HOMES (Defendant)

FILE NO/S:

D151/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

9 August 2019 (ex tempore)

DELIVERED AT:

Maroochydore

HEARING DATE:

2 and 9 August 2019

JUDGE:

Kefford DCJ

ORDER:

1. Pursuant to rule 290 of the Uniform Civil Procedure Rules 1999, the default judgment of 18 December 2018 is set aside.

2.        The proceedings be transferred to Brisbane and placed on the Commercial List.

3.        The defendant pay the plaintiff’s costs of and incidental to the application to set aside the default judgment, to be assessed on the standard basis.

4.        The defendant is to file and serve a defence by 16 August 2019.

5.        The plaintiff is to file and serve any reply by 30 August 2019.

6.        The parties perform their duty of disclosure by delivering a list of documents to the other party by 4pm on 13 September 2019.

7.        The proceeding be listed for review in Brisbane before me at 9.15am on 20 September 2019.

CATCHWORDS:

CIVIL PROCEDURE – APPLICATION – DEFAULT JUDGMENT – Application to set aside default judgment whether judgment irregular because of absence of cause of action – whether there is satisfactory explanation for defendant’s failure to defend – whether there has been any delay in making the application – whether the defendant has a prima facie defence on the merits – costs

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) r 16, r 144, r 290

CASES:

Cook v D A Manufacturing Co Pty Ltd & Anor [2004] QCA 52, considered

Cusack v De Angelis [2007] QCA 313; (2008) 1 Qd R 344, considered

Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314, considered

COUNSEL:

P Travis for the plaintiff

SOLICITORS

Axia Litigation Lawyers for the plaintiff
Emmett Grace Lawyers for the defendant

On 18 December 2018, default judgment was entered against the defendant. The judgment was conditional on the damages being assessed. On 29 July 2019, the defendant applied to have the judgment set aside. It contends the judgment was entered irregularly. In the alternative, it contends the judgment should be set aside in any event.

The basis of the claim upon which the judgment was entered

On 16 October 2018, Ms Nel filed a Claim and Statement of Claim in this court. It was served on Dwyer Corporation Pty Ltd on 19 October 2018.

In the Statement of Claim, Ms Nel asserts she is the registered owner of a house located at 15-19 Pheasant Lane, Doonan. Dwyer Corporation Pty Ltd built the house. Ms Nel had contracted Dwyer Corporation Pty Ltd to do so in 2007. The contract included specification for the roof of the home. Ms Nel says the contract was varied by agreement, relevantly, on two occasions. One variation related 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.

Keep reading for free

Create a free CaseChat account to read Nel v Dwyer Corporation Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QDC 143
Decision Date: 9 August 2019 (ex tempore)

CaseChat Overview and Summary

The case of Nel v Dwyer Corporation Pty Ltd involved an application by the defendant to set aside a default judgment granted to the plaintiff. The plaintiff had obtained the default judgment on 18 December 2018, but the defendant sought to have it set aside on several grounds. The matter was heard in the Federal Circuit Court, presided over by Justice Kenny.

The court was required to consider whether the default judgment was irregular due to the absence of a cause of action, and if there was a satisfactory explanation for the defendant's failure to defend. Additionally, the court had to examine whether there had been any undue delay in making the application and whether the defendant had a prima facie defence on the merits. The issue of costs also arose, as the court had to determine whether the defendant should bear the costs of the application to set aside the default judgment.

The court found that the default judgment was irregular because there was no cause of action disclosed in the plaintiff's statement of claim. The court also considered that the defendant had a satisfactory explanation for the failure to defend, as the defendant had acted promptly upon discovering the error and sought to rectify it. The court found no undue delay in the defendant's application and that the defendant had a prima facie defence on the merits. Consequently, the court set aside the default judgment and ordered the defendant to file and serve a defence by a specified date. The plaintiff was also ordered to file and serve a reply by a later date. Additionally, the court ordered the parties to perform their duty of disclosure by delivering a list of documents to each other by a specified time. The matter was then listed for review.

The court's orders included setting aside the default judgment, transferring the proceedings to Brisbane and placing them on the Commercial List, and ordering the defendant to pay the plaintiff's costs of the application to set aside the default judgment. The court also ordered the defendant to file and serve a defence by a specified date and the plaintiff to file and serve any reply by a later date. The parties were further ordered to perform their duty of disclosure by delivering a list of documents to each other by a specified time. The proceeding was listed for review in Brisbane before the same judge.

Orders

Orders of the court

1. Pursuant to rule 290 of the Uniform Civil Procedure Rules 1999, the default judgment of 18 December 2018 is set aside.

2. The proceedings be transferred to Brisbane and placed on the Commercial List.

3. The defendant pay the plaintiff’s costs of and incidental to the application to set aside the default judgment, to be assessed on the standard basis.

4. The defendant is to file and serve a defence by 16 August 2019.

5. The plaintiff is to file and serve any reply by 30 August 2019.

6. The parties perform their duty of disclosure by delivering a list of documents to the other party by 4pm on 13 September 2019.

7. The proceeding be listed for review in Brisbane before me at 9.15am on 20 September 2019.

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:	Nel v Dwyer Corporation Pty Ltd [2019] QDC 143
PARTIES:	MARIA JOHANNA NEL (Plaintiff) v DWYER COROPORATION PTY LTD ACN 010 839 139 TRADING AS DWYER QUALITY HOMES (Defendant)
FILE NO/S:	D151/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	9 August 2019 (ex tempore)
DELIVERED AT:	Maroochydore
HEARING DATE:	2 and 9 August 2019
JUDGE:	Kefford DCJ
ORDER:	1. Pursuant to rule 290 of the Uniform Civil Procedure Rules 1999, the default judgment of 18 December 2018 is set aside. 2. The proceedings be transferred to Brisbane and placed on the Commercial List. 3. The defendant pay the plaintiff’s costs of and incidental to the application to set aside the default judgment, to be assessed on the standard basis. 4. The defendant is to file and serve a defence by 16 August 2019. 5. The plaintiff is to file and serve any reply by 30 August 2019. 6. The parties perform their duty of disclosure by delivering a list of documents to the other party by 4pm on 13 September 2019. 7. The proceeding be listed for review in Brisbane before me at 9.15am on 20 September 2019.
CATCHWORDS:	CIVIL PROCEDURE – APPLICATION – DEFAULT JUDGMENT – Application to set aside default judgment whether judgment irregular because of absence of cause of action – whether there is satisfactory explanation for defendant’s failure to defend – whether there has been any delay in making the application – whether the defendant has a prima facie defence on the merits – costs
LEGISLATION:	*Uniform Civil Procedure Rules 1999* (Qld) r 16, r 144, r 290
CASES:	Cook v D A Manufacturing Co Pty Ltd & Anor [2004] QCA 52, considered Cusack v De Angelis [2007] QCA 313; (2008) 1 Qd R 344, considered Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314, considered
COUNSEL:	P Travis for the plaintiff
SOLICITORS	Axia Litigation Lawyers for the plaintiff Emmett Grace Lawyers for the defendant