Shofay v Boral Resources (Qld) Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Shofay v Boral Resources (Qld) Pty Ltd [2020] QDC 210

PARTIES:

ANDREW SHOFAY
(appellant)

v

BORAL RESOURCES (QLD) PTY LTD
(respondent)

FILE NO/S:

BD 4412 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 45 Magistrates Court Act 1921

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

3 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2020

JUDGE:

Loury QC DCJ

ORDER:

1.   The appeal is allowed.

2.   The default judgment obtained by the respondent on 3 July 2019 is set aside.

3.   The appellant is to file and serve a notice of intention to defend and defence within 14 days.

CATCHWORDS:

APPEAL – DEFAULT JUDGMENT – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – APPEAL AGAINST MAGISTRATE DECISION TO REFUSE APPLICATION – where the respondent filed a claim and statement of claim against the appellant – where, on application by the respondent, default judgment was entered against the appellant – where the appellant’s application to have the default judgment set aside was dismissed by the Magistrate – where the appellant appeals against the decision of the Magistrate – whether the Magistrate erred in finding there was no prima facie case – whether the Magistrate erred in applying the wrong test in the appellant’s application to set aside default judgment – whether the Magistrate erred in considering the appellant’s credibility as a relevant factor in determining a prima facie case

Uniform Civil Procedure Rules 1999 r 290
Magistrates Court Act 1921 s 45

National Mutual Life Associate of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
House v The King (1936) 55 CLR 499
National Australia Bank Limited v Singh [1995] 1 Qd R 377

COUNSEL:

A Fronis for the appellant
NJ Derrington for the respondent

SOLICITORS:

Prolaw Legal for the appellant
Holman Webb Lawyers for the respondent

1. On 3 July 2019 default judgment was entered against the second defendant (the appellant) in the amount of $77,894.98. On 2 September 2019 the appellant brought an application pursuant to rule 290 of the Uniform Civil Procedure Rules 1999 that default judgement be set aside.  The application was heard on 9 November 2019.  The learned Magistrate refused the application. 

1. The appellant appeals that decision pursuant to section 45 of the Magistrates Court Act 1921.   Section 47 of that Act sets out the jurisdiction of the District Court.  It states that on the hearing of an appeal the District Court may relevantly do any of the following:

1.          draw inferences of fact from facts found by the Magistrates Court or from admitted facts or facts not disputed;

2.          order a new trial;

3.          order judgement to be entered for any party; and

4.          make any other order to ensure the determination on the merits of the real questions in the controversy between the parties. 

1. That the Act gives a power to a District Court judge to draw inferences suggests that the appeal ought to be by way of rehearing consistent with the nature…