Peldan & Ors v Jones
[2008] QDC 111
•1 April 2008
[2008] QDC 111
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3731 of 2006
| MICHAEL RICHARD PELDAN and | First Plaintiff |
| MORGAN GERARD LANE and HI-WAY TRUCK REPAIRS PTY LTD and | Second Plaintiff Third Plaintiff |
| CHRISTOPHER JONES | Defendant |
BRISBANE
..DATE 01/04/2008
ORDER
CATCHWORDS: Uniform Civil Procedure Rules r 225 - court declines to enter judgment in a claim for insolvent trading where defendant company director has not made disclosure requested by plaintiffs - order for disclosure made, permitting plaintiffs to proceed as a default in the event of non-compliance
HIS HONOUR: This is an application seeking judgment against the defendant under rule 225 for failure to make disclosure. While the rule in terms authorises a judgment against a defendant who defaults in that regard, in my view, it is far too strong a thing to contemplate that outcome on this occasion. Generally one would expect a court to be much more inclined to strike out the claim of a defaulting plaintiff than to enter a judgment which might be totally inappropriate against a defaulting defendant, particularly one such as Mr Jones who now appears to be looking after his own interests, his former solicitors having been given leave to withdraw.
The nature of the claim has some relevance here. It is a claim against a sole director of a company now in liquidation for insolvent trading. Of course, all manner of issues may have to be gone into if perfect justice or anything approaching it is to be achieved in that context.
The structure of the claim is to identify a whole series of invoices the insolvent company failed to meet. Whether or not there was truly insolvent trading may be resolved differently in respect of particular invoices arising at their own particular dates.
The claim is something in excess of $84,000.
...
HIS HONOUR: Notwithstanding the foregoing, under the philosophy of modern litigation enshrined in the UCPR the plaintiffs, who include Hi-Way Truck Repairs Pty Ltd, although it is identified as a defendant in some file documents, are entitled to expect the defendant to run through the various hoops which the UCPR mandates.
In the circumstances I am prepared to make what is called a guillotine order so that dire consequences for Mr Jones may well eventuate if he fails to make disclosure.
He has not appeared today when called although service on him by post to his address noted in his notice of intention to defend has been undertaken. Given the nature of the claim there must be some uncertainty as to just what judgment in default would be appropriate. This is not the occasion for going into that.
The plaintiffs, in my view, should be put in a position of being able to proceed as if there were no notice of intention to defend and defence on the file. It is going to be a matter of persuading the Registrar to enter a default judgment. It may be one of those situations where the proceeding has to be set down for hearing, but I am not making those comments to render the plaintiffs' task more difficult.
These are the orders:
order that the defendant make disclosure by delivering a
list of documents no later than 14 days from the date of service of a copy of this order on him by posting prepaid post to his address in his notice of intention to defend or such other address for service as he may notify by an appropriate document filed in the court.
order that in default of timely compliance with the
foregoing by the defendant, unless some other order is made by the court, the notice of intention to defend and defence be struck out and the plaintiffs be entitled to proceed as if the defendant had not filed those documents.
order that the defendants pay the plaintiffs' costs of
the application to be assessed;
liberty to apply.
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