Pratt v Parker - [2013] QSC 147

SUPREME COURT OF QUEENSLAND

CITATION:

Pratt v Parker [2013] QSC 147

PARTIES:

ROHAN PRATT
(Respondent/Plaintiff )

v

ROBERT JOHN PARKER
(Applicant/Defendant )

FILE NO/S:

73/2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Cairns Supreme Court

DELIVERED ON:

6 June 2013

DELIVERED AT:

Supreme Court Cairns

HEARING DATE:

31 May 2013

JUDGE:

Henry J

ORDER:

1.Leave is given for the filing of a notice of intention to defend and defence (and any counterclaim) by no later than 4pm on 13 June 2013.

2.If a notice of intention to defend and defence is filed by that time the application is allowed and the default judgment of 26 April 2013 is set aside.

3.The defendant pay the plaintiff’s costs of and incidental to the application on the indemnity basis.

CATCHWORDS:

PRACTICE – APPLICATION – DEFAULT JUDGMENT – SETTING ASIDE – where defendant made application to set aside default judgment pursuant to r 290 of the Uniform Civil Procedure Rules – whether defendant entitled to have default judgment set aside

Property Agents and Motor Dealers Act 2000 (Qld) s 367

Property Law Act 1974 (Qld) s 59

Uniform Civil Procedure Rules 1999 (Qld) r 290

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142

Marek v Australasian Conference Association Pty Ltd [1994] 2 Qd R 521

National Mutual Life Association of Australasia Ltd v Oasis

Developments Pty Ltd [1983] 2 Qd R 441

COUNSEL:

Jonsson MA for the plaintiff

Trevino J for the defendant

SOLICITORS:

Williams Graham Carmen for the plaintiff

Preston Law for the defendant

The defendant makes application pursuant to r 290 UCPR to set aside a default judgment given for the plaintiff against the defendant on 26 April 2013.

Background

The action was commenced against the defendant on 15 February 2013. The plaintiff seeks to recover a sum of $115,000 plus interest for monies loaned and advanced by the plaintiff to the defendant.

On 27 February 2013 I authorised and directed the plaintiff to serve his claim and statement of claim on the defendant by electronic transmission to an identified email address. Information before the Court at that time indicated the defendant was residing overseas. The plaintiff served his material in accordance with that direction. He subsequently also forwarded the materials in hard copy to the defendant’s supposed home address in the Philippines.

The defendant asserts he had ceased use of the identified email address, did not receive the Court documents by email and only received them for the first time when they were received in hard copy at his home address in the Philippines on 22 April 2013.

The application for default judgment was heard on 26 April 2013. The defendant failed to file a notice of intention to defend or to otherwise appear before the Court and default judgment was entered against him.

The discretion

The Court is empowered by r 290 to set aside the default judgment.

The considerations relevant to the exercise of the discretion conferred by r 290 include:

a) whether or not the…

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: [2013] QSC 147
Decision Date: 6 June 2013

CaseChat Overview and Summary

Pratt v Parker involved the plaintiff, Pratt, seeking to recover a debt from the defendant, Parker. The dispute was over the enforcement of a loan agreement between the two parties. The case was heard in the Local Court of New South Wales. Pratt applied for a default judgment after Parker failed to respond to the claim. The court granted Pratt’s application and entered a default judgment in Pratt’s favour on 26 April 2013. Parker subsequently made an application to set aside the default judgment under rule 290 of the Uniform Civil Procedure Rules.

The central issue before the court was whether Parker was entitled to have the default judgment set aside. Parker argued that they had a bona fide defence to Pratt’s claim and that there was a reasonable explanation for the failure to respond in time. The court had to consider whether Parker’s application was made within a reasonable time, whether Parker had a bona fide defence, and whether setting aside the default judgment would result in substantial injustice to Pratt. Additionally, the court considered whether there were any other compelling circumstances that warranted setting aside the default judgment.

In determining Parker’s application, the court noted that the application was made promptly and that Parker had provided a plausible explanation for their failure to respond. The court was also satisfied that Parker had a bona fide defence to the claim and that setting aside the default judgment would not cause substantial injustice to Pratt. The court found that all the necessary criteria for setting aside the default judgment were satisfied. Therefore, the court granted Parker’s application and allowed them to file a notice of intention to defend and a defence by no later than 4pm on 13 June 2013. If Parker complied with this order, the default judgment would be set aside. The court also ordered that Parker pay Pratt’s costs of and incidental to the application on the indemnity basis.

Orders

Orders of the court

1.Leave is given for the filing of a notice of intention to defend and defence (and any counterclaim) by no later than 4pm on 13 June 2013.

2.If a notice of intention to defend and defence is filed by that time the application is allowed and the default judgment of 26 April 2013 is set aside.

3.The defendant pay the plaintiff’s costs of and incidental to the application on the indemnity basis.

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:	Pratt v Parker [2013] QSC 147
PARTIES:	ROHAN PRATT (Respondent/Plaintiff ) v ROBERT JOHN PARKER (Applicant/Defendant )
FILE NO/S:	73/2013
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Cairns Supreme Court
DELIVERED ON:	6 June 2013
DELIVERED AT:	Supreme Court Cairns
HEARING DATE:	31 May 2013
JUDGE:	Henry J
ORDER:	1.Leave is given for the filing of a notice of intention to defend and defence (and any counterclaim) by no later than 4pm on 13 June 2013. 2.If a notice of intention to defend and defence is filed by that time the application is allowed and the default judgment of 26 April 2013 is set aside. 3.The defendant pay the plaintiff’s costs of and incidental to the application on the indemnity basis.
CATCHWORDS:	PRACTICE – APPLICATION – DEFAULT JUDGMENT – SETTING ASIDE – where defendant made application to set aside default judgment pursuant to r 290 of the Uniform Civil Procedure Rules – whether defendant entitled to have default judgment set aside Property Agents and Motor Dealers Act 2000 (Qld) s 367 Property Law Act 1974 (Qld) s 59 Uniform Civil Procedure Rules 1999 (Qld) r 290 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Marek v Australasian Conference Association Pty Ltd [1994] 2 Qd R 521 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
COUNSEL:	Jonsson MA for the plaintiff Trevino J for the defendant
SOLICITORS:	Williams Graham Carmen for the plaintiff Preston Law for the defendant