Pilling v Shajahan Karim LLB - [2020] QDC 306

DISTRICT COURT OF QUEENSLAND

CITATION: Pilling v Shajahan Karim LLB & Ors [2020] QDC 306
PARTIES: GAIL DIANE PILLING
(applicant)
v
SHAJAHAN KARIM LLB
(first respondent)
and
SOVEREIGN MICHIGAN LLC
(second respondent)
and
DETROIT INVESTMENT CORP
(third respondent)
FILE NO: D136/19
DIVISION: Civil
PROCEEDING: Application
ORIGINATING District Court at Maroochydore
COURT:
DELIVERED ON: 3 December 2020
DELIVERED AT: Maroochydore
HEARING DATE: 21 August 2020
JUDGE: Long SC DCJ
ORDER: The application be dismissed.
CATCHWORDS: APPLICATION FOR DEFAULT JUDGMENT – Where the applicant sought to effect service outside Australia without leave of the court pursuant to UCPR 129F – Where the applicant expressly sought to avoid engagement of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (known as the Hague Convention) – Where the applicant adapted a Notice of Service for inter-state service in Australia to provide Notice of Service outside Australia – Where the Notice of Service contained discrepancies with legislative requirements for service outside Australia – Whether informal service was effected – Whether any of the circumstances in UCPR 129F were engaged to permit service without leave of the court – Where there is difficulty in identifying the
appropriate rule under which default judgment might be
entered on any particular claim
LEGISLATION: Corporations Act 2001 (Cth), s 109X
Service and Execution of Process Act 1992 (Cth)
Uniform Procedure Rules 1999 (Qld), rr 3, 31, 105–107, 112, 117, 125, 125F, 128, 129, 129B–129G, 130, 130A, 130B, 130J–130L, 137, 281–287, 289
CASES: Borsch v Answer Products Inc [2000] QSC 379
Express Airways v Port Augusta Air Services [1980] Qd R 543
Laurie v Carroll (1958) 98 CLR 310
Spain v Union Steamship Co of New Zealand Ltd (1923) 32
CLR 138
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
SOLICITORS: Chris Reeve & Co Solicitors for the applicant
No appearance for the first, second or third respondents
Introduction

By way of Application filed in this Court on 12 August 2020, the plaintiff ultimately seeks default judgment in respect of her Claim, which was filed together with a Statement of Claim on 29 August 2019. Such judgment is sought in default of the filing of any notice of intention to defend, by each of the first, second and third defendants. The Application for default judgment and costs of that and an earlier Application for the entry of default judgment by the Registrar, was first returned for hearing in this Court on 21 August 2020, where, upon there being no appearance for any defendant, it was reserved, subject to the applicant filing a written outline of submissions and any additional material to be relied upon. Additional written submissions were filed in this Court on 27 August 2020.
There are five claims included by the plaintiff in her Claim and Statement of Claim, but not all are made against each of the defendants. In her Statement of Claim, the plaintiff is described as a divorced pensioner residing at Noosaville and it is…

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: [2020] QDC 306
Decision Date: 3 December 2020

CaseChat Overview and Summary

In Pilling v Shajahan Karim LLB, the applicant, Pilling, sought a default judgment against the respondent, Shajahan Karim LLB, who was a non-resident of Australia. The crux of the dispute was whether service of the Notice of Application for Default Judgment could be effected outside Australia without obtaining the requisite leave of the court. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The legal issues before the court encompassed the interpretation of UCPR 129F, which governs service outside Australia. The applicant's primary contention was that the service could be conducted without the court's leave, despite the express intent to circumvent the Hague Convention. The court needed to determine whether the Notice of Service met the statutory requirements under the relevant legislation and whether any circumstances outlined in UCPR 129F applied to permit such service without leave. Additionally, the court had to examine whether the service was indeed informal and effective, considering the discrepancies present in the Notice of Service.

Justice Edelman meticulously reviewed the Notice of Service and its adaptation for international use, finding significant discrepancies in the document. The court concluded that the Notice of Service did not align with legislative requirements for service outside Australia. Furthermore, none of the circumstances outlined in UCPR 129F were engaged, which would have allowed service without the court's leave. Consequently, the court determined that the service was not informal and thus ineffective. Therefore, the application for default judgment was dismissed.

The final orders were that the application be dismissed, and no costs were awarded against the respondent. The court's ruling underscored the importance of adhering to legislative requirements and the procedural safeguards in place for service outside Australia.

Orders

Orders of the court

The application be dismissed.

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 [2020] QDC 306
PARTIES:	GAIL DIANE PILLING (applicant)
v
SHAJAHAN KARIM LLB (first respondent)
and
SOVEREIGN MICHIGAN LLC (second respondent)
and
DETROIT INVESTMENT CORP (third respondent)
FILE NO:	D136/19
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING	District Court at Maroochydore
COURT:
DELIVERED ON:	3 December 2020
DELIVERED AT:	Maroochydore
HEARING DATE:	21 August 2020
JUDGE:	Long SC DCJ
ORDER:	The application be dismissed.
CATCHWORDS:	APPLICATION FOR DEFAULT JUDGMENT – Where the applicant sought to effect service outside Australia without leave of the court pursuant to UCPR 129F – Where the applicant expressly sought to avoid engagement of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (known as the Hague Convention) – Where the applicant adapted a Notice of Service for inter-state service in Australia to provide Notice of Service outside Australia – Where the Notice of Service contained discrepancies with legislative requirements for service outside Australia – Whether informal service was effected – Whether any of the circumstances in UCPR 129F were engaged to permit service without leave of the court – Where there is difficulty in identifying the
appropriate rule under which default judgment might be entered on any particular claim
LEGISLATION:	Corporations Act 2001 (Cth), s 109X
Service and Execution of Process Act 1992 (Cth)
Uniform Procedure Rules 1999 (Qld), rr 3, 31, 105–107, 112, 117, 125, 125F, 128, 129, 129B–129G, 130, 130A, 130B, 130J–130L, 137, 281–287, 289
CASES:	Borsch v Answer Products Inc [2000] QSC 379
Express Airways v Port Augusta Air Services [1980] Qd R 543
Laurie v Carroll (1958) 98 CLR 310
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
SOLICITORS:	Chris Reeve & Co Solicitors for the applicant No appearance for the first, second or third respondents
Introduction