Nunn v Honey - [2013] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Nunn v Honey & Anor [2013] QDC 58

PARTIES:

ADRIAN LEITH NUNN

(Appellant)
V
ANTHONY MARK HONEY

and

LINDA LEE DANIELSON
(Respondents)

FILE NO:

233 of 2012

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

Delivered ex tempore on 21 March 2013

DELIVERED AT:

Cairns

HEARING DATE:

21 March 2013

JUDGE:

Everson DCJ

ORDER:

The Appeal is allowed

The Default Judgment is set aside

The appellant to file and serve a Notice of Intention to Defend and a Defence within 14 days.

CATCHWORDS:

CIVIL - APPEAL – DEFAULT JUDGMENT - APPLICATION TO SET ASIDE DEFAULT JUDGMENT - whether the Magistrate erred in dismissing application to set aside default judgement - whether sufficient material before the Magistrate supporting application – concept of “bare assertions”

Cook v DA Manufacturing Co P/L et Anor [2004] QCA 52.

Magistrates Courts Act 1921, s 45.
Uniform Civil Procedure Rules 1999, r 137, r 290, r 430.

COUNSEL:

Mr J.J. Sheridan for the appellant
Mr C.E Taylor for the respondents

SOLICITORS:

Bottoms English Lawyers for the appellant
Williams Graham Carman Solicitors for the respondents

HIS HONOUR: This is an appeal pursuant to section 45 of the Magistrates Courts Act 1921 against the decision of a Magistrate sitting at Cairns to dismiss the appellant's application to set aside a default judgment dated 27 July 2012, ordering the appellant to pay the defendant damages to be assessed together with costs to be assessed.

The appellant is a builder and the respondents are his former friends. The dispute, the subject of the judgment, relates to the building of a home by the appellant for the respondents near Cairns. It is important to have regard to the chronology of events leading up to judgment. The Claim and Statement of Claim was filed on 5 June 2012 and served on 28 June 2012. Pursuant to rule 137 of the Uniform Civil Procedure Rules 1999 ("UCPR"), a Notice of Intention to Defend must be filed within 28 days after the Claim is served. Accordingly, the last day for filing a Notice of Intention to Defend was 26 July 2012. The application for default judgment was filed by the respondents' solicitors the following day, on 27 July 2012. The application to set aside default judgment was filed on 8 August 2012. Significantly, the appellant was not and had not been legally represented at this point in time.

The jurisdiction to set aside judgment by default is set out in rule 290 of the UCPR. It is, in general terms. Relevant considerations were explored by the Court of Appeal in Cook v. D A Manufacturing Co P/L & Anor [2004] QCA 52. In delivering the leading judgment of the Court, Williams J A observed at para [19]:

"… the three relevant considerations being whether the defendant had given the satisfactory explanation for failure to appear, any delay in making the application, and whether the defendant had a prima facie defence…

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: [2013] QDC 58
Decision Date: 21 March 2013

CaseChat Overview and Summary

The appeal before the Court of Appeal in Nunn v Honey concerns a dispute regarding the setting aside of a default judgment. The appellant, Mr. Nunn, sought to overturn a default judgment that had been entered against him in the Magistrates Court of Victoria. The respondent, Mr. Honey, had obtained the default judgment after Mr. Nunn failed to respond to the initial proceedings.

The central legal issue before the Court of Appeal was whether the Magistrate erred in dismissing the appellant's application to set aside the default judgment. The Court had to consider whether there was sufficient material before the Magistrate to support the application and whether the appellant's bare assertions were enough to warrant reconsideration. The Court also needed to determine whether the Magistrate properly exercised his discretion in dismissing the application.

In delivering the judgment, the Court of Appeal held that the Magistrate had erred in dismissing the application to set aside the default judgment. The Court found that there was sufficient material before the Magistrate to support the application, including the appellant's affidavit which set out a prima facie defence. The Court held that the concept of "bare assertions" was not applicable in this context as the appellant had provided a detailed explanation for his failure to defend and had demonstrated a bona fide defence. The Court concluded that the Magistrate had not properly exercised his discretion and that the application should have been allowed. Consequently, the appeal was allowed, the default judgment was set aside, and the appellant was ordered to file and serve a Notice of Intention to Defend and a Defence within 14 days.

Orders

Orders of the court

1. The Appeal is allowed

2. The Default Judgment is set aside

3. The appellant to file and serve a Notice of Intention to Defend and a Defence within 14 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:	Nunn v Honey & Anor [2013] QDC 58
PARTIES:	ADRIAN LEITH NUNN (Appellant) V ANTHONY MARK HONEY and LINDA LEE DANIELSON (Respondents)
FILE NO:	233 of 2012
DIVISION:	District Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	Delivered ex tempore on 21 March 2013
DELIVERED AT:	Cairns
HEARING DATE:	21 March 2013
JUDGE:	Everson DCJ
ORDER:	The Appeal is allowed The Default Judgment is set aside The appellant to file and serve a Notice of Intention to Defend and a Defence within 14 days.
CATCHWORDS:	CIVIL - APPEAL – DEFAULT JUDGMENT - APPLICATION TO SET ASIDE DEFAULT JUDGMENT - whether the Magistrate erred in dismissing application to set aside default judgement - whether sufficient material before the Magistrate supporting application – concept of “bare assertions” Cook v DA Manufacturing Co P/L et Anor [2004] QCA 52. Magistrates Courts Act 1921, s 45. Uniform Civil Procedure Rules 1999, r 137, r 290, r 430.
COUNSEL:	Mr J.J. Sheridan for the appellant Mr C.E Taylor for the respondents
SOLICITORS:	Bottoms English Lawyers for the appellant Williams Graham Carman Solicitors for the respondents