Rely-on Super Pty Ltd v Jakeman - [2013] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

Rely-on Super Pty Ltd v Jakeman & Ors [2013] QDC 265

PARTIES:

RELY-ON SUPER PTY LTD (ACN 137478678) AS TRUSTEE OF THE RELY-ON SUPERANNUATION FUND
(Plaintiff)

v

BARRY LEE JAKEMAN AS TRUSTEE OF THE PEAK DOWNS HIDEAWAY NO 1 UNIT TRUST
(First Defendant)

and

BARRY LEE JAKEMAN
(Second Defendant)

and

KATHRYN ELLEN JAKEMAN
(Third Defendant)

FILE NO/S:

BD4601/12

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

21 October 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

11 October 2013

JUDGE:

Smith DCJ

ORDER:

The application is allowed.1.

The default judgment entered on 13 January 2013 is set aside on the following conditions:2.

That the Third Defendant pay to the plaintiff’s solicitors the costs of and incidental to the entry of the judgment, the enforcement proceedings against her and this application on an indemnity basis as agreed or assessed. (a)

(b)        The Third Defendant is to pay into court the sum of $20,000 for security for costs.

The defence is to be filed within 28 days. (c)

3.          Liberty to apply.

I will hear the parties on the form of order 4.

CATCHWORDS:

PRACTICE AND PROCEDURE- Application to set aside default judgment- whether adequate explanation for delay- whether there is a defence on the merits- conditions of setting aside judgment

Uniform Civil Procedure Rules 1999 (Q) r 290

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

Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52

Garcia v National Australia Bank Ltd (1998) 194 CLR 395

National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd.R. 441

Pratt v Parker [2013] QSC 147

Troiani and Anor v Alfost Properties Pty Ltd [2002] QCA 281

Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 13

COUNSEL:

Mr. D. de Jersey for the Third Defendant

Mr. D. Favell for the Plaintiff

SOLICITORS:

Holman Webb Lawyers for the Third Defendant

Stoddart Legal Pty Ltd for the Plaintiff

Introduction

This is an application by the Third Defendant, Kathryn Ellen Jakeman, to set aside a default judgment entered against her on 9 January 2013 for the amount of $157,606.03 together with interest and costs.

The application is pursuant to r 290 of the Uniform Civil Procedure Rules.

The judgment is regularly entered.

The principles associated with such an application are well settled.

In National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd.R. 441 MacPherson J held at 449:

“The principal question remaining is whether the judgments obtained in default of appearance … should be set aside. In Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd.R. 142, Kelly J regarded an application to set aside such a judgment, when regularly entered, as requiring the court to consider whether the defendant had given a satisfactory explanation of its failure to appear; any delay in making the application; and whether the Defendant had a prima facie defence on the merits. Speaking generally,…

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] QDC 265
Decision Date: 21 October 2013

CaseChat Overview and Summary

In the matter of Rely-on Super Pty Ltd versus Jakeman, the Queensland Supreme Court was called upon to determine whether a default judgment should be set aside. The plaintiff, Rely-on Super Pty Ltd, sought to recover funds from the defendant, Jakeman, who had failed to respond to proceedings, leading to the entry of a default judgment. The case involved the interpretation and application of relevant procedural rules and case law concerning the setting aside of default judgments.

The central legal issue before the court was whether the defendant had provided an adequate explanation for the delay in filing a defence and whether there was a viable defence on the merits. The court also needed to consider whether setting aside the judgment would be just in all the circumstances, including the imposition of conditions for such relief.

In addressing these issues, the court examined the defendant's affidavit and the relevant case law. The court noted that while the defendant had not provided a wholly satisfactory explanation for the delay, there were mitigating factors. The court also found that there appeared to be a defence on the merits that warranted further exploration. Considering the principles established in cases such as Garcia v National Australia Bank Ltd and Cook v D A Manufacturing Co Pty Ltd, the court concluded that it was just to set aside the default judgment on certain conditions. These conditions included the payment of costs and security for costs, as well as a deadline for filing the defence.

Ultimately, the court allowed the application to set aside the default judgment, imposing the aforementioned conditions. The court also ordered that the defence be filed within 28 days and granted liberty to apply for further orders.

Orders

Orders of the court

The application is allowed.1.

The default judgment entered on 13 January 2013 is set aside on the following conditions:2.

That the Third Defendant pay to the plaintiff’s solicitors the costs of and incidental to the entry of the judgment, the enforcement proceedings against her and this application on an indemnity basis as agreed or assessed. (a)

(b) The Third Defendant is to pay into court the sum of $20,000 for security for costs.

The defence is to be filed within 28 days. (c)

3. Liberty to apply.

I will hear the parties on the form of order 4.

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:	Rely-on Super Pty Ltd v Jakeman & Ors [2013] QDC 265
PARTIES:	RELY-ON SUPER PTY LTD (ACN 137478678) AS TRUSTEE OF THE RELY-ON SUPERANNUATION FUND (Plaintiff) v BARRY LEE JAKEMAN AS TRUSTEE OF THE PEAK DOWNS HIDEAWAY NO 1 UNIT TRUST (First Defendant) and BARRY LEE JAKEMAN (Second Defendant) and KATHRYN ELLEN JAKEMAN (Third Defendant)
FILE NO/S:	BD4601/12
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	21 October 2013
DELIVERED AT:	Rockhampton
HEARING DATE:	11 October 2013
JUDGE:	Smith DCJ
ORDER:	The application is allowed.1. The default judgment entered on 13 January 2013 is set aside on the following conditions:2. That the Third Defendant pay to the plaintiff’s solicitors the costs of and incidental to the entry of the judgment, the enforcement proceedings against her and this application on an indemnity basis as agreed or assessed. (a) (b) The Third Defendant is to pay into court the sum of $20,000 for security for costs. The defence is to be filed within 28 days. (c) 3. Liberty to apply. I will hear the parties on the form of order 4.
CATCHWORDS:	PRACTICE AND PROCEDURE- Application to set aside default judgment- whether adequate explanation for delay- whether there is a defence on the merits- conditions of setting aside judgment Uniform Civil Procedure Rules 1999 (Q) r 290 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd.R. 142 Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd.R. 441 Pratt v Parker [2013] QSC 147 Troiani and Anor v Alfost Properties Pty Ltd [2002] QCA 281 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 13
COUNSEL:	Mr. D. de Jersey for the Third Defendant Mr. D. Favell for the Plaintiff
SOLICITORS:	Holman Webb Lawyers for the Third Defendant Stoddart Legal Pty Ltd for the Plaintiff