Sherring Pty Ltd v Incampo

[2003] QDC 573

DISTRICT COURT OF QUEENSLAND

CITATION:	Sherring Pty Ltd v Incampo & Anor [2003] QDC 573
PARTIES:	SHERRING PTY LTD

Appellant

and

LUIGI INCAMPO

and

ROSE INCAMPO

Respondents

FILE NO:	258/2003
PROCEEDING:	Appeal
ORIGINATING  COURT:	District Court Southport
DELIVERED ON:	21 November 2003
DELIVERED AT:	Southport
HEARING DATE:	14 November 2003
JUDGE:	Newton DCJ
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	Judgment upon admissions – Rule 190 Uniform Civil Procedure Rules 1999 – whether Terms of Settlement contain clear and unambiguous admissions of fact – whether discretion of Magistrate to decline to order judgment upon admissions had miscarried
Cases cited: re Registered Trade Marks “Certina” (1970) 44 ALJR 191 Nominal Defendant v Zdravkovic (1990) 100 FLR 214 Faith Shipping Co SA v Ship Mardina Importer (1982) 42 ALR 484
COUNSEL:	Mr M Campbell – appellant Mr P Tucker - respondents
SOLICITORS:	Price & Roobottom – appellant Primrose Couper Cronin Rudkin – respondents

[1]  The appellant appeals against a decision of a Magistrate in the Southport Magistrates Court declining to grant judgment upon admission. The background of the matter may be briefly stated. The appellant (lessor) sued the respondents (lessees) for monies owing by the respondents to the appellant pursuant to a written registered lease in respect of real property. The appellant claimed the sum of $49,999.98 being monies due and owing from February 2000 to June 2001, together with interest thereon and costs.

[2]  The female respondent was made bankrupt on 23 April 2003 by sequestration order of the Federal Magistrates Court at Brisbane. Although the liability of the respondents is joint and several, the appellant proceeds in this appeal only against the male respondent, given the bankruptcy of the female respondent.

[3]  The respondents defended the proceedings in the Magistrates Court at Southport and the matter was listed for hearing in that Court on 27 February 2003.

[4]  By a written agreement entered into by the appellant’s counsel and the solicitors for the respondents dated 26 February 2003 (the Terms of Settlement), the respondents agreed to compromise the proceedings on the following terms:

(i)         the respondents would pay to the appellant the sum of $41,600.00 in full and final satisfaction of the claims in the action, including interest and costs;

(ii)        the sum of $41,600.00 was to be paid by an initial payment of $10,000.00 on or before 21 March 2003 and thereafter by 17 monthly payments of $1,666.66 and a final payment of $1,600.00 on or before 21 October 2004;

(iii)       time was of the essence of the agreement;

(iv)       in the event of default of the terms of the agreement it was agreed that the plaintiff (appellant) would be at liberty to enter judgment upon admissions in the action for the sum of $65,000.00, less any payments received, by application to the Court;

(v)        on such application to the Court an affidavit by a member or a solicitor in the employ of the solicitors for the appellant as to default of the respondents and the amount owing under the agreement was to be prima facie evidence of the facts, acts, omissions or matters deposed to and was to be admissible as such, and the respondents agreed not to object to the admissibility of any such affidavit which may contain statements of information and belief.

[5]  The respondents failed to make the payment due on or before 21 March 2003, namely the sum of $10,000.00 and also failed to make the payment due on or before 21 April 2003, namely the sum of $1,666.66.

[6]  On 30 April 2003 an application was heard by the Magistrates Court at Southport wherein the appellant sought an order that it be granted judgment upon admissions for the sum of $65,000.00. The application was supported by an affidavit of a solicitor in the employ of the solicitors for the appellant swearing that the respondents had failed to pay the initial instalment or any instalment, were consequently in default of the Terms of Settlement, and that the amount owing under the Terms of Settlement was $65,000.00. When the matter came before the Magistrate on 30 April 2003 the respondents still had not paid the initial instalment of $10,000.00 or the first monthly instalment of $1666.66.

[7]  The Magistrate did not grant the appellant judgment upon admissions in the action. Her Worship stated:

“I decline to grant judgment upon admission today. However, I make no final ruling as to whether the Terms of Settlement Clause 4 suffice as evidence of clear and unequivocal admission by the defendant. The defendant offers to pay the instalments due up to today’s date. Should the defendant fail to make future instalment payments the plaintiff/applicant is at liberty to apply for the issue of judgment upon admission to be heard and determined. It is ordered that the defendant/respondent pay to the plaintiff/applicant costs in the sum of $412.00.”

[8] The relevant rule of the Uniform Civil Procedure Rules 1999 is Rule 190 which is in these terms:

(i)         If an admission is made by a party, whether in a pleading or otherwise, after the start of the proceeding, the Court may, on the application of another party, make an order to which the party applying is entitled on the admission.

(ii)        The Court may give judgment or make another order even though other questions in the proceeding have not been decided.

(iii)       The Court may, instead of assessing the amount claimed, make a judgment conditional on the assessment of damages under Chapter 13 Part 8.

(iv)       If the Court gives judgment under sub-rule 3 the Court must specify in the order the Court to perform the assessment under Rule 507.

[9]  Counsel for the appellant submits that the respondents were clearly in default under the agreement and that the Magistrate was in error in declining to grant the appellant judgment upon admission in the action for the sum of $65,000.00 when the application was made to the Magistrate on 30 April 2003.

[10]For a judgment to be entered under Rule 190 of the Uniform Civil Procedure Rules 1999 the defendant’s admission must be strong and unambiguous. The applicant must show a clear and unanswerable case and the Court must exercise its discretion to enter judgment on admissions with great caution (re Registered Trade Marks “Certina” (1970) 44 ALJR 191 at 192 per Barwick CJ). In Nominal Defendant v Zdravkovic (1990) 100 FLR 214 Master Hogan of the Supreme Court of the ACT in considering the Court’s power to enter judgment upon admissions under the Rules of the Supreme Court 1937 (ACT) which contain similar provisions to Rule 190 of the UCPR, stated that:

“What was required was a clear admission of facts in the face of which it is impossible for the party making it to succeed. A relevant fact must be clearly pleaded and as clearly admitted.”

[11]As I understand the submissions of counsel for the appellant, it is not suggested that there exist any admissions made by the respondents outside the Terms of Settlement and in particular, Clause 4 of that agreement. Thus, the appellant does not rely upon any admissions from sources such as pleadings, notices to admit facts, answers to interrogatories, interlocutory affidavits or correspondence. (cf Faith Shipping Co SA v Ship Mardina Importer (1982) 42 ALR 484).

[12]Counsel for the respondent submits that the appellant has failed to identify any clear admission, or any admission at all, on which it relies upon in seeking judgment under Rule 190. In the absence of any clear admissions, it is submitted, the appellant is unable to demonstrate that the discretion of the Magistrate in declining to make the order sought by the appellant was exercised in an impermissible manner.

[13]In my view, it was not possible for the Magistrate to determine upon the Terms of Settlement how the sum of $65,000.00 was calculated as being the correct sum to which the appellant was entitled under the terms of the agreement. Certainly, the Terms of Settlement fail to set out in clear and unambiguous terms the admissions of fact upon which the appellant would seek to rely. Indeed, no admissions at all can be discerned in the document. This deficiency is not remedied by referring to the appellant’s entitlement to enter judgment upon admission. In these circumstances I am not persuaded that the Magistrate exercised her discretion to decline to grant judgment upon admissions in an impermissible manner. Accordingly, the appeal must be dismissed. The appellant is to pay the respondent’s costs of the appeal to be assessed.

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