Rural Bank Ltd v Wallace

SUPREME COURT OF QUEENSLAND

CITATION:

Rural Bank Ltd v Wallace [2014] QSC 87

PARTIES:

RURAL BANK LIMITED

(Plaintiff)

v

CHARLIE WALLACE

(Defendant)

FILE NO/S:

SC No 7928 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2014

JUDGE:

Atkinson J

ORDERS:

1.   The application filed on 11 April 2014 is dismissed. 

2.   The defendant is to pay the plaintiff’s costs of and incidental to the application to be assessed. 

3.   The enforcement warrant issued on 23 January 2014 is stayed until 8 May 2014 at 9 am.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – DEFAULT OF PLEADING – where default judgment was given on 10 January 2014 – where the defendant applied to have default judgment set aside ex debito justiciae – where there was confusion as to whether a notice of intention to proceed was sent or received – where the parties signed a deed of agreement whereby the defendant would not apply set aside the judgment – whether there was unconscionable dealing in the method by which the agreement was made – whether the judgment by default should be set aside – whether the enforcement warrant to enforce the judgment by default should be set aside

COUNSEL:

M Gynther for the plaintiff/respondent

M J McDonald for the defendant/applicant

SOLICITORS:

Corrs Chambers Westgath for the plaintiff/respondent

HER HONOUR:   This is the hearing of an amended application before the court which sought the following orders: 

1. that the judgment by default entered in favour of the plaintiff on 10 January 2014 be set aside pursuant to Uniform Civil Procedure Rules 1999 (UCPR), rule 290; 

1. that the enforcement warrant issued by the court on 23 January 2014 to enforce the judgment by default be set aside pursuant to the same rule;

1. that pursuant to rule 7 of the UCPR, the time within which the defendant must file a defence be extended to 21 days from the date any such order is made; 

1. that the plaintiff be restrained from enforcing or attempting to enforce the Enforcement Warrant, including but not limited to giving instructions to the receivers appointed pursuant to Deed of Appointment dated 6 January 2014, until further order; and

1. that the plaintiff be permanently restrained from enforcing, or attempting to enforce, an undated Deed of Agreement and an undated Occupation Licence which is annexed to the Deed of Agreement marked “A”. 

Briefly, the history of this matter is that the plaintiff, Rural Bank Limited (“Rural Bank”), filed a claim for moneys owing pursuant to a mortgage in this court on 31 August 2012.  A statement of claim was attached setting out the basis of the claim and the method by which the amount said to be outstanding had been calculated.  On 1 November 2012, the defendant filed a document called a conditional notice of intention to defend which made some rather bizarre claims but…