Perpetual Limited v Flamin' Grill Australia Pty Ltd

[2009] QDC 373

[2009] QDC 373

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1654 of 2007

PERPETUAL LIMITED & ANOR	Plaintiff
and
FLAMIN' GRILL AUSTRALIA PTY LTD & ANOR	Defendant

BRISBANE

..DATE 12/11/2009

ORDER

CATCHWORDS
Uniform Civil Procedure Rules 1999 r 687(2)

Judgment for plaintiff pursuant to a compromise on proof of the agreement and default in paying instalments - costs fixed by court

HIS HONOUR:   I will order that the address for service of the defendant company be its registered office, and the address for service of the individual defendant be 45 Portal Street, Oxley, Queensland, 4075 unless and until any different address is filed and notice of it served.

...

HIS HONOUR:  The Court makes an order in terms of the initialled draft which concisely describes a judgment that the defendants pay the plaintiffs the amount of $197,000 and $1,893.70 for costs.  This occurs by way of enforcement of a compromise which is placed before the Court that required the defendants to pay $200,000 by nominated instalments, the first of which, $3,000, was due and paid by the end of July.  Thereafter, monthly instalments of $3,000 per month were required to be paid.  None has been.  The default provision entitles the plaintiffs to this judgment on the filing of an affidavit of a solicitor proving the compromise agreement and the default, which step has been taken.

Mr Deen appears for the individual defendant (without objection from the plaintiff) who is his wife but not for the company.  Earlier today the solicitor on the record for the defendants has been given leave to withdraw. Service of the application in respect of both defendants was effected by service on Mr O'Connor's firm but the company didn't appear when called.  It's difficult to see what could have been said on its behalf against this judgment.  Mr Deen, realistically, is simply seeking more time to pay to avoid a judgment.  He's been trying to come to terms in that regard with Mr Egan but without success.  I've explained to him the possibility of an application in future by the defendants seeking that a Judge order payment by instalments, but that's not a matter for today.

If Mr Dean was seeking an adjournment today, that was very diffidently, and he accepts, I think, that there's little point in an adjournment in the circumstances. The evil day will arrive sooner or later. Under r 687(2), the Court has fixed costs in the sum asked for by Mr Egan which seems to me to be modest. Mr Deen certainly hasn't cavilled at it.

I order as per initialled draft.

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