Pilling v Shajahan Karim LLB - [2022] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Pilling v Shajahan Karim LLB & Ors [2022] QDC 167

PARTIES:

GAIL DIANE PILLING

(Plaintiff/Applicant)

v

SHAJAHAN KARIM LLB

(First Defendant)

and

SOVEREIGN MICHIGAN LLC a.k.a. Sovereign & Co

(Second Defendant)

DETROIT INVESTMENT CORP a.k.a. DETROIT INVEST

(Third Defendant) and

SOVEREIGN ESTATES LLC

(Fourth Defendant)

FILE NO:

D136/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

29 July 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

19 November 2021

JUDGE:
Long SC DCJ

ORDER:

1.   The application filed 15 November 2021 is dismissed.

2.   It is directed that:

(a)   a copy of the emails to the Court from the applicant’s solicitor:

    (i)    dated 18 November 2021 and attached written submission and authorities, be marked for identification with the letter “A”;

    (ii)   dated 23 November 2021 and attachments, be marked for identification with the letter “B”; and

    (iii)    dated 25 November 2021 and attached written submissions, be marked for identification with the letter “C”;

(b) a copy of the emails exchanged between registry officers and a person variously identified as “Shajahan Khan” and “Shah Khan” and dated between 19 August 2020 and 6 December 2021 and forwarded to my associate on 6 December 2021, be marked for identification with the letter “D”; and

(c)   the applicant be provided with a copy of the documents marked “D” for identification and by the Registrar, upon request, with a copy of any further communications of a like kind.

CATCHWORDS:

PROCEDURE – Jurisdiction – Where the applicant is applying for default judgment – Whether service of the applicant’s amended claim and statement of claim has been effected upon each of the named defendants – Where the applicant has attempted to effect service by engaging the Registrar of the Supreme Court of Queensland for service abroad of the amended claim under the Hague Convention, as reflected in the Uniform Civil Procedure Rules 1999 (“UCPR”) – Where such engagement has resulted in the return of a              “certificate – attestation’” in respect of service on the First, Third and Fourth Defendants and of non-service on the Second Defendant – Where the plaintiff has not sufficiently complied with the mandatory requirements of UCPR 128 – Where the applicant had not sought and was not granted the Court’s leave to allow service outside Australia of the amended claim and amended statement of claim – Whether the applicant was entitled, pursuant to UCPR 129F, to serve the amended claim and statement of claim without prior leave of the Court – Whether it is appropriate to grant the applicant leave to proceed pursuant to UCPR 129B

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 117, 128, 129, 129B, 129F, 129G, 129H, 130J

CASES:

Entores Ltd. V Miles Far East Corporation [1955] 2 QB 327
Express Airways v Port Augusta Air Services [1980] Qd R 543
Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg AG (formerly Flottweg GMBH & Co KGAA) (ABN 95 101 547 424) (No 4) (2009) 225 ALR 632
Pilling v…

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: [2022] QDC 167
Decision Date: 29 July 2022

CaseChat Overview and Summary

The case of Pilling v Shajahan Karim LLB involved an application for default judgment by the plaintiff, who sought to effect service of the amended claim and statement of claim upon each of the named defendants. The application was made to the Supreme Court of Queensland, and the primary focus of the proceedings was whether the plaintiff had properly served the defendants with the necessary documents to proceed with the default judgment. The plaintiff had engaged the Registrar of the Supreme Court for service abroad under the Hague Convention, but the outcome of this engagement was mixed: a certificate of attestation was returned for service on the First, Third, and Fourth Defendants, while no such certificate was returned for the Second Defendant. This raised questions about the plaintiff's compliance with the mandatory requirements of the Uniform Civil Procedure Rules 1999 (UCPR).

The legal issues the court had to resolve included whether the plaintiff was entitled to serve the amended claim and statement of claim without prior leave of the court under UCPR 129F, and whether it was appropriate to grant the plaintiff leave to proceed under UCPR 129B. The court found that the plaintiff had not sufficiently complied with the mandatory requirements of UCPR 128 and had not sought or been granted leave to allow service outside Australia. The court concluded that the plaintiff had not demonstrated a prima facie case for service of the amended claim and statement of claim, and therefore the application for default judgment was dismissed.

The court's reasoning was grounded in the procedural requirements set out in the UCPR. It was determined that the plaintiff had not fulfilled the necessary steps to ensure valid service, particularly in relation to the Second Defendant. The court's decision was clear: the application for default judgment was dismissed, and the plaintiff was not granted leave to proceed with the service of the amended claim and statement of claim. The court also directed that various documents be marked for identification and that the plaintiff be provided with copies of specific communications. This decision underscored the importance of strict adherence to procedural rules in the context of civil litigation.

Orders

Orders of the court

1. The application filed 15 November 2021 is dismissed.

2. It is directed that:

(a) a copy of the emails to the Court from the applicant’s solicitor:

(i) dated 18 November 2021 and attached written submission and authorities, be marked for identification with the letter “A”;

(ii) dated 23 November 2021 and attachments, be marked for identification with the letter “B”; and

(iii) dated 25 November 2021 and attached written submissions, be marked for identification with the letter “C”;

(b) a copy of the emails exchanged between registry officers and a person variously identified as “Shajahan Khan” and “Shah Khan” and dated between 19 August 2020 and 6 December 2021 and forwarded to my associate on 6 December 2021, be marked for identification with the letter “D”; and

(c) the applicant be provided with a copy of the documents marked “D” for identification and by the Registrar, upon request, with a copy of any further communications of a like kind.

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:	Pilling v Shajahan Karim LLB & Ors [2022] QDC 167
PARTIES:	GAIL DIANE PILLING (Plaintiff/Applicant) v SHAJAHAN KARIM LLB (First Defendant) and SOVEREIGN MICHIGAN LLC a.k.a. Sovereign & Co (Second Defendant) DETROIT INVESTMENT CORP a.k.a. DETROIT INVEST (Third Defendant) and SOVEREIGN ESTATES LLC (Fourth Defendant)
FILE NO:	D136/19
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Maroochydore
DELIVERED ON:	29 July 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	19 November 2021
JUDGE:	Long SC DCJ
ORDER:	1. The application filed 15 November 2021 is dismissed. 2. It is directed that: (a) a copy of the emails to the Court from the applicant’s solicitor: (i) dated 18 November 2021 and attached written submission and authorities, be marked for identification with the letter “A”; (ii) dated 23 November 2021 and attachments, be marked for identification with the letter “B”; and (iii) dated 25 November 2021 and attached written submissions, be marked for identification with the letter “C”; (b) a copy of the emails exchanged between registry officers and a person variously identified as “Shajahan Khan” and “Shah Khan” and dated between 19 August 2020 and 6 December 2021 and forwarded to my associate on 6 December 2021, be marked for identification with the letter “D”; and (c) the applicant be provided with a copy of the documents marked “D” for identification and by the Registrar, upon request, with a copy of any further communications of a like kind.
CATCHWORDS:	PROCEDURE – Jurisdiction – Where the applicant is applying for default judgment – Whether service of the applicant’s amended claim and statement of claim has been effected upon each of the named defendants – Where the applicant has attempted to effect service by engaging the Registrar of the Supreme Court of Queensland for service abroad of the amended claim under the Hague Convention, as reflected in the Uniform Civil Procedure Rules 1999 (“UCPR”) – Where such engagement has resulted in the return of a “certificate – attestation’” in respect of service on the First, Third and Fourth Defendants and of non-service on the Second Defendant – Where the plaintiff has not sufficiently complied with the mandatory requirements of UCPR 128 – Where the applicant had not sought and was not granted the Court’s leave to allow service outside Australia of the amended claim and amended statement of claim – Whether the applicant was entitled, pursuant to UCPR 129F, to serve the amended claim and statement of claim without prior leave of the Court – Whether it is appropriate to grant the applicant leave to proceed pursuant to UCPR 129B
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld) rr 117, 128, 129, 129B, 129F, 129G, 129H, 130J
CASES:	Entores Ltd. V Miles Far East Corporation [1955] 2 QB 327 Express Airways v Port Augusta Air Services [1980] Qd R 543 Olivaylle Pty Ltd (ACN 080 670 640) v Flottweg AG (formerly Flottweg GMBH & Co KGAA) (ABN 95 101 547 424) (No 4) (2009) 225 ALR 632 Pilling v…