Reco Oak Pty Ltd v Eissa

[2003] QDC 39

Transcript of Proceedings

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DISTRICT COURT	[2003]QDC 039	Date: 15 April, 2003
CIVIL JURISDICTION JUDGE ROBIN QC
No D5088 of 2001

RECO OAK PTE LIMITED	Plaintiff
and
MOMTAZ EISSA	Defendant
BRISBANE ..DATE 21/03/2003
ORDER

CATCHWORDS: Application for summary judgment - applicant could not prove service of previous orders on Respondent, or even that the orders had been taken out - respondent's address for service was the one that the applicant had evicted him from - applicant waited until respondent was in default before searching for other address and notifying intentions - respondent out of the country at time of previous orders - respondent given copies of request for further and better particulars and his defence and given 28 more days to comply - judgment ordered in the event of not supplying the particulars requested.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those

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HIS HONOUR: This matter has proved to be something of a mess.	1
The plaintiff lessor sues for rent and various on-costs, also damage to rented commercial premises. The proceedings began in the Magistrates Court on the 7th of March 2001. With the passage of further time the size of the claim increased and

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amendments were made on the 10th of September 2001. proceedings were transferred to the District Court.

The relevant premises were the Rose Café, Adelaide Street,

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City. The defendant, Mr Eissa, had been ejected from them by July 2001. It will be seen he complains today about not knowing of various things that have happened in the proceeding. The blame for that is, at least in part, his own or his solicitors', because in the notice of intention to

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defend and a defence and counterclaim filed on the 6th of
April 2001 his address was given at care of the Rose Café -
"residential or business address" was given as care of the

Rose Café, 130 Adelaide Street, Brisbane.

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It seems that that may have been a correct address at the time. The onus was on Mr Eissa, if he didn't wish that address to be - or his solicitor's address to be used for purposes of service, to indicate to the Court and the plaintiff his correct address. However, it might be seen as

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somewhat mischievous of the plaintiff to send communications to the Rose Café; once it had thrown the defendant out there was no reason to think that documents left there would come to

his attention. The plaintiff was in some minor difficulty in

ORDER

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knowing what other address to use, especially after the 19th	1
defendant's solicitors on the record, obtained leave of Judge
of October 2001. On that day H Drakos and Company, the plaintiff or the Court by the identification of a new address

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for service and it is perhaps unsurprising that the Rose Café

address was used.

I accept that from Mr Eissa that for 20 years he has lived at

25 Kildare Street, Carina Heights and that that information

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was readily obtainable to anyone looking at the telephone has heard of an occasion on which a process server was
directory, for example. The plaintiff elected not to do that
until about February this year. Communications sent to Mr

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informed by a gentleman whose description given by the process
server matches Mr Eissa's, that that was his name, before
resiling once documents had been handed over. I don't think

anything turns on the implications of that particular event.

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The counterclaim that I refer to is expressed inelegantly in the following summary, and I quote. "The plaintiff claims $50,000 for damages for fraud presentations (sic) and or negligence." The first reference obviously ought to be to the defendant and the other (queried) reference to representations

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or misrepresentations.

A good deal of the allegations of the statement of claim were admitted but not the quantum of the plaintiff's claim, leaving

ORDER

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Mr Ratanatray today, who represents the plaintiff, to argue	1
that he is entitled to a judgment as on admissions under UCPR rule 110. Given that quantum would still remain an issue for assessment, I cannot think it would advance matters
particularly at this stage to grant any kind of judgment.

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On the 19th of October the associate's endorsement indicates that his Honour Judge Boulton made the following orders on the plaintiff's application filed the 11th of October 2001:

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"The order of the Court is that:

(1) the defendant file and serve answers to the
plaintiff's request for further and better particulars of
the defence and counterclaim dated 27 September 2001

within 28 days.

(2) In the event that the defendant fails to comply with
order (1) the plaintiff be entitled to immediately enter

judgment against the defendant.	30
(3) The defendant pay the plaintiff's costs of and incidental to this application to be agreed or failing agreement to be assessed."

That order was never taken out, there being no more on the

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file than a draft initialled by his Honour. I find that
troubling in circumstances where the plaintiff is now seeking
a judgment on the basis of non-compliance with an order that

has never been perfected.

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The order dignifies the plaintiff's "request" because in truth

the document is not headed "Request" but it is headed

"Plaintiff's further and better particulars of the defence and

counterclaim". The plaintiff seems to have had as much

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difficulty as the defendant in being able to identify in	1
intolerably accurate language what was being attempted to be done.
The central issue today, in my opinion, is whether the

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plaintiff could show that Judge Boulton's order, which I to have left and cannot be assumed to have had any knowledge
reiterate was never taken out, came to the knowledge of the
defendant. Mr Barker, the representative of H Drakos &

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of what Judge Boulton ordered. It is not shown that any steps it within 28 days or face dire consequences.

whatever were taken to alert the defendant to what Judge

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Mr Ratanatray says that the plaintiff would have been silly to alert the defendant to the situation and give him extra time potentially to comply with Judge Boulton's order of which he must be taken to be totally ignorant. A stamp in his passport shows that he left the country on the 23rd of September 2001.

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It is most unlikely he was back here by the 19th of October.

By the time the plaintiff can show that it took any steps to seek to notify anyone other than H Drakos & Company of the order (which was a step of questionable usefulness given that

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they had withdrawn) Mr Eissa was already in default of Judge

Boulton's order. The plaintiff, perhaps understandably,

wasn't anxious to give him any opportunity to retrieve his

position.

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The complications attending the matter continue. An	1
associate's endorsement shows that on the 27th of November 2001 Judge Boulton, in proceedings at which only the plaintiff was represented, amended the order made on the 19th of October by varying it in accordance with a draft initialled by him and

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placed with the papers, no order being made as to costs.

It is a confusing situation and it may well be that the only change that the Judge made was to the heading of the proceedings to deal with some confusion as between District

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Court and Magistrates Court headings, but that is a matter of speculation. Once again the order of the 27th November 2001, whatever it was, has not been taken out and there seems to be not a single document filed to amplify the associate's

endorsement on the order sheet.

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Mr Ratanatray has referred me to rule 5 of the UCPR and I acknowledge that, contrary to what might be the expectations of ordinary people, defendants who are in Court reluctantly are expected to knuckle under, so to speak, and comply to the

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letter with the requirements of the rules and orders of the
Court.

This has to be qualified by due acknowledgment to the principle that no-one can be expected to comply with an order

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of which he has no knowledge. In the circumstances, Mr Eissa

has to be treated as in that situation.

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The matter now requires some case management, in my opinion,	1
to get it back on the rails. I can see no reason for not going back to the situation that faced Judge Boulton on 19th of October 2001.

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I am at this moment giving my associate, so that he can hand it to Mr Eissa, a copy of the plaintiff's inelegantly titled "Further and Better Particulars of the Defence and Counter-

claim", which is in truth a request for such particulars and I

propose to renew Judge Boulton's order by requiring that the

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particulars, which in fact are sought only of the counter-
claim (not of the defence), be supplied within 28 days of

today.

My associate is also supplying Mr Eissa with a copy of his

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notice of intention to defend and defence and counter-claim. exactly what his pleading is of which particulars are required and exactly what particulars are required so he will have no excuse 28 days hence.

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If he has not supplied the further and better particulars, then the consequence is likely to be that pursuant to paragraph 2 of Judge Boulton's order which I confirm, the plaintiff gets judgment.

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I might say that, technically, given that the particulars were requested only of the counter-claim, it might be that judgment 21032003 T21/JLP15 M/T CMS33/2003 (Robin DCJ) 7 ORDER 60

is one on the counter-claim in the plaintiff's favour rather	1
than one in its own claim.
I will also order that the defendant's address for service be 25 Kildare Street, Carina Heights, Queensland 4152 unless and

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until notice of a different address for service is filed and
served.

I renew Judge Boulton's order as indicated in both of the drafts dated 19th of October 2001, also in respect of the

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costs order that his Honour made which relate to the opposed to 5088 of 2001 which seems to be the current correct number.
plaintiff's application filed on the 11th of October 2001.

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So far as the costs of the plaintiff's present application filed on the 17th of February 2003 are concerned, I order that those be the plaintiff's costs in its claim so that if the plaintiff succeeds in obtaining a judgment in due course, it

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will get the costs of today.

I will correct what I said about the application of the plaintiff being the one filed on 17th of February 2003. That is the date that I was given by Mr Ratanatray but reference to

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the documents shows that that was actually an application for

substituted service and that the plaintiff is really here

today on an application filed on the 7th of January 2003. And

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it is the costs of that application that I order be the	1
plaintiff's costs in the cause in its claim.
...

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HIS HONOUR: So, the date for compliance with paragraph 1 of

Judge Boulton's order becomes the 17th of April 2003.

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