Queensland Building Services Authority v Doyle

[2012] QDC 60

[2012] QDC 60

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 113 of 2010

QUEENSLAND BUILDING SERVICES AUTHORITY	Plaintiff
and
PHILIP JOHN DOYLE	Defendant

SOUTHPORT

..DATE 02/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 163, r 225(2)(b)

Whether guillotine order should be made entitling plaintiff to judgement for $124,000.00 if defendant failed to provide particulars of his defence within an extended time to be allowed - indemnity costs awarded
HIS HONOUR:  The court's orders are as follows:

1 Extend to the 17th of April 2012 the time limited by the
order of the 20th of January 2012 for filing and serving by
the defendant of the particulars sought in the plaintiff's
request of 27 January 2012:

2 Order that the amended defence filed the 17th of December
2011 be struck out if such particulars are not filed and
served by the extended date;

3 Adjourn the proceeding to the 26th of April 2012, unless
particulars have been filed and served as aforesaid, for the
purpose of the defendant showing why judgment for the
plaintiff upon its claim should not be entered.

4 Order that the defendant pay the plaintiff's costs of
today's appearance on the indemnity basis to be assessed if
not agreed.

The defendant respondent has not appeared today when called.

There's been some discussion today as to whether the court
ought to make a guillotine order in reliance on Rule 163
whereby the plaintiff would obtain judgment in default of
particulars being forthcoming by the extended date.

Some ferreting around has located a number of pertinent decisions which it may be useful to collect. In the “Butterworths” annotations to the UCPR there's reference to Swanston v Shrapnel Downing & Elks [2004] QDC 224 as authority for guillotine orders being appropriate on the basis that a future default should occur in reliance on the analogous rule in the context of disclosure, Rule 225(2)(b). In fact, in the result there Judge Dodds allowed an appeal against such an order.

Decisions of my own where Rule 163 or Rule 225(2)(b) was sought to be invoked to found guillotine orders (with limited success) are Bruce v Palazzi [2006] QDC 314, Chamberlain Nominees Pty Ltd v Klazema [2006] QDC 133, Peldan v Lane [2008] QDC 111 and Interact Co Limited v GDC Global Digital Cash Pty Ltd [2009] QDC 259.

In the last-mentioned a guillotine order striking out
pleadings was made, which is different in its consequences
from the striking out a defendant's notice of intention to
defend which might have provided the basis for default judgments under
the UCPR.

I have, over the years, taken the view that entering judgment
against a plaintiff who fails to comply with the rules or
court directions is one thing, entering a judgment against a
delinquent defendant for relief to which the plaintiff may have to just claim is a very different thing.  Examples of such
draconian orders are rare.

Reference was made in one of the above cases to Mango
Boulevard Pty Ltd v Spencer [2008] QSC 117. The plaintiff sought to establish its entitlement to have transferred to it the first and second defendants’ shares in a certain company; they counterclaimed, seeking to establish that the plaintiff’s shares should be transferred to them. Reference was
made to guillotine orders against delinquent defendants, which might have led to the plaintiff obtaining judgement on their counterclaim.  One reads in paragraphs 6 and 7 that the Chief
Justices' guillotine order, which might have led to the amended defence and counterclaim being struck out and that judgment for the plaintiff on the counterclaim and costs was sought to be circumvented by an application for extending the Chief Justice’s deadline long after it has passed. Chesterman J at [30] construed the judgement the plaintiff became entitled to as one “default of pleadings the counterclaim having been struck out”. On analysis, it is seen that it was a defaulting claimant who suffered the penalty of a judgement dismissing their claim. See [35]. His Honour refused to make orders that would have circumvented the judgement in favour of the plaintiff on the defendant’s counterclaim. The plaintiff’s own claim, however, was still awaiting determination.

The plaintiff's claim here is substantial, in excess of
$124,000.  In essence, it's a familiar kind of claim seeking
reimbursement from the defendant for costs which the plaintiff
has incurred in making good what it says was his
unsatisfactory performance as a builder.

An amended defence filed on the 7th of December 2011 sets up
the assertion that the defendant was really engaged only in
contract administration or the like.  One can well understand why the plaintiff needs further and better particulars of that.  The defendant before Judge McGinness agreed to supply them by a particular date should they be requested, as happened, and he has reneged.

In my opinion the court ought to insist on compliance by him
with the court’s directions and applicable rules if he's to be allowed to persist in his unusual defence. 

It seems to me sensible to advance the proceeding towards resolution the provision that's been made in my order for consideration of whether the plaintiff gets judgment under Rule 163, 292 or some other rule on the 26th of this month.  As things have developed the case is being managed by the court.

Today's event is, in fact, a directions hearing ordered by Judge McGinness on the January 20th directions hearing before her.

Indemnity costs are, in my view, appropriate as a way of the court marking its displeasure with the defendant who is becoming a repeat offender from the point of view of not meeting his obligations under the rules and directions.  There's presently a substantial costs order outstanding in this regard.

Does that cover everything?

...

HIS HONOUR:  I make an order in terms of the initialled draft
order.  Thank you.

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