Peter David Gregg v Graham David Howard (First Defendant)

[2000] QCA 449

[2000] QCA 449

COURT OF APPEAL

PINCUS JA

DAVIES JA

BYRNE J

Appeal No 8074 of 2000

PETER DAVID GREGG and

JOCELYN KAY GREGG  Respondents (Plaintiffs)

v.

GRAHAM DAVID HOWARD Appellant (First Defendant)

and

DAVID JOHN PAHL    Not party to appeal (Second Defendant)

BRISBANE

..DATE 30/10/2000

JUDGMENT

DAVIES JA:The respondent to the present application whom I will call for convenience "the respondent" seeks leave to appeal against an order refusing him an adjournment of his action in the District Court, and appeals against the judgment against him in that action.

The respondent to this appeal, whom I shall call "the applicant", now applies to this Court to strike out the appeal, presumably in the inherent jurisdiction of this Court on the basis that there is no reasonable basis for the appeal.

The judgment which the applicant obtained in the District Court was one for $286,045.09 being moneys owing pursuant to a deed of guarantee.  The proceedings which resulted in that judgment were commenced as long ago as 10 March 1994.  Judgment was entered in that action upon written admissions by the respondent on 12 September 1994.  However on 6 April 1995 the respondent obtained an order setting aside the judgment against him and on 11 April 1995 he filed a defence and counterclaim, the counterclaim alleging amongst other things, fraudulent misrepresentation by the applicants.

He sought rescission of the deed, or alternatively damages for fraudulent misrepresentation.

The applicants filed a reply and answer denying these allegations on 3 May 1995.  At that stage there was another defendant in the action, Pahl, but the proceedings between the applicants and that defendant have since been compromised.

On 3 May 1995 the applicants required an affidavit of documents from the respondent.  When that was not supplied, they applied for an order for discovery on 10 September 1995 and that order was made on 23 September 1995, a condition of such order being that, in default, the defence and counterclaim be struck out.

The respondent, however, filed his list of documents on

20 September 1995. On 8 May 1997 the respondent's solicitors signed a certificate of readiness for trial. On 28 July 1999 the applicants' solicitors wrote to the respondent requesting that he sign and return a request for a trial date under the Uniform Civil Procedure Rules.

The respondent refused to do so and in a contested hearing on 20 August 1999, an order was made in the District Court dispensing with the requirement that the respondent sign a request for a trial date.

The applicants' solicitors communicated with the respondent on 10 May this year and on 30 May informed him via facsimile as a matter of courtesy that the action would be called over on 2 June and that on that date the applicants would apply to have the matter set down for trial. 

On 20 June the applicants' solicitor wrote to the respondent informing him that the matter had been set down for trial on 17 and 18 August.  Then on 10 August he wrote to the respondent inviting him to inspect the applicants' discovered documents and asked him whether he was legally represented.  He received no reply, although the respondent via a recent affidavit by his solicitor admits receiving these letters.

On 17 August the respondent sought an adjournment of the trial because he said he wished to obtain legal representation.  His Honour refused the application, giving reasons for doing so.

The respondent's appeal to this Court is in effect against the refusal to grant the adjournment.  No attempt has been made by affidavit or otherwise to prove a good case on the merits, or even good faith on the part of the respondent as would be necessary if, for example, he had applied to set aside a judgment by default.

On the other hand, there was a good deal before his Honour in the respondent's argument for an adjournment and what he said during the course of it to indicate a lack of good faith on his part.  He gave three reasons for seeking the adjournment.  They were firstly that he did not have sufficient moneys to pay lawyers to represent him; secondly that he had not obtained his file from his previous solicitors; and thirdly that he did not believe the plaintiffs would pursue the action to trial, partly, it seems, he said, because he had issued a writ against them in the Supreme Court.

Each of these reasons his Honour thought, and in my opinion rightly, lacked substance.  As to the first, although he swore that he was due to receive some money which would place him in funds, his evidence about this appears to be inconsistent.  Moreover, it was unclear whether he intended to use these funds to defend the action or for other purposes.  Nor would he disclose the source of those funds, or what money was necessary in order for him to retain a lawyer.  He paid $5000 into Court, but this apparently was borrowed.  It is therefore by no means clear that he would have had sufficient funds to engage lawyers to represent him or that he was even serious in doing so and wishing to do so. 

As to the second, he said he had made one request for these documents, that was at the time his solicitors had withdrawn from proceedings in May or June 1999.  He was evasive, or simply did not know whether fees were payable in order to recover these documents, although he did say he had made a complaint about fees.

As to the third, it is plain that there was no basis for thinking that the plaintiffs would not proceed to trial.  On the contrary, they had given him every indication of their intention of doing so.  Moreover the Supreme Court proceedings, although filed, never seem to have been served on the applicants.

Having been refused his adjournment, the respondent elected not to take part in the hearing.  No criticism can, in my opinion, be made of the judgment which his Honour gave in consequence of the uncontradicted evidence before him.

All of this indicates, and plainly indicates, in my view, that there was no point in granting the adjournment and that the respondent far from having a valid defence and counterclaim was simply trying to put the matter off. 

In those circumstances, the learned primary judge was in my view correct to refuse the adjournment, to proceed to hear the matter and to give judgment as he did.

In this Court the respondent filed an affidavit not by himself, but on information and belief by his solicitor.  In that affidavit he does not dispute the debt, but raises only the possibility that the applicants may have received money from Pahl, the other guarantor, under the compromise to which I have already referred.

Reference is also made to proceedings by the applicants and a company against Pahl and others which was also compromised at the same time.  It is true that if Pahl paid money to the applicants in satisfaction of the guaranteed debt, then they cannot recover that sum a second time from the respondent.  But that is not a matter which in my opinion can justify setting aside the judgment obtained against the respondent.  There is no evidence one way or the other as to whether any money has been recovered from Pahl under the guarantee.

The respondent also referred to a claim by a company called Gregg Holdings, but whether in fact the respondent has any claim against Gregg Holdings, and I should say that none has been shown on the material before this Court, it is not a matter which could have affected the present application, nor has any other basis in my view been shown.

In those circumstances, I do not think that there is any arguable ground of appeal, and I therefore strike it out.

I would also refuse the application for leave to appeal against the order refusing the adjournment.  Also I would refuse the application for a stay.

PINCUS JA:I agree.

BYRNE J:I agree.

PINCUS JA:The orders will be as indicated by Justice Davies. 

The appellant, Mr Howard, will be ordered to pay the costs of today's proceedings.

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