Shreeve and Anor v Scott

[2020] QMC 10

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Shreeve & Anor v Scott [2020] QMC 10

PARTIES:

RALPH EDWARD SHREEVE
(First Plaintiff)

SAMANTHA KATHRYN SHREEVE
(Second Plaintiff)

v

RHYS DAVID ANDREW SCOTT
(Defendant)

FILE NO/S:

M2181 of 2018

DIVISION:

Civil

PROCEEDING:

Interlocutory Applications filed 31 March 2020

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

MAGISTRATE:

Magistrate Hay

ORDER:

   [1]      The defendant’s application filed 31 March 2020 to set aside the default judgement entered on 18 January 2019 is dismissed.

   [2]      Within 21 days of the delivery of these reasons, the parties are to file and serve any written submissions on the issue of costs, if not agreed, together with draft orders.

COUNSEL:

P A Beehre of counsel for the Defendant

SOLICITORS:

Carter Newell Lawyers for the Plaintiffs/Respondents

Defendant – self represented (direct brief to counsel)

1. The defendant applies to set aside a default judgment entered by an acting Registrar on 18 January 2019 (‘Application to Set Aside’). This is the second time the defendant has brought such an application, having failed to appear on his first application.

1. The defendant asserts that he was unaware of these proceedings until 19 October 2019, when a party sought to join him to Federal Magistrates Court proceedings.[1]

   [1] Affidavit of the defendant filed 31 March 2020 at [19]. See also Submissions of the Applicant/Defendant filed by email on 15 May 2020 and Further Submissions of the Applicant/Defendant filed by email on 21 May 2020.

Relevant Factual Background and Findings

1. On 18 September 2018 an unknown agent engaged by KR & S Risk and Security Management is purported to have had a telephone conversation with the defendant in which the defendant “advised that he resides in Brisbane, however he refused to provide his exact address… confirmed that he had contact details for Cater [sic] Newell Lawyers and will make direct contact with them regarding this matter.”[2]

   [2] Affidavit of L J Preston filed 28 September 2018, Exhibit LJP 3.

1. On 3 October 2018 orders for substituted service upon the defendant were made (the ‘Substituted Service Order’).[3] As a consequence of these orders, the plaintiff was entitled to serve the defendant:

   [3] Order of Magistrate Cull dated 3 October 2018.

1.          By post at:

(a)        110 Basnett St, Chermside West;

(b)        Lot 2, 9 Valente Close, Chermside;

(c)        110 Haynes Kite Miller Rd, Blackbutt South.

2.          Email to [e-mail].

1. On 19 October 2018 the defendant says he became aware of these proceedings. [4] This is inconsistent with the hearsay evidence adduced in the affidavit of the plaintiffs’ solicitor, although I am not inclined to give the hearsay evidence any weight because:

1.          it is not only hearsay, but second hand;

2.          the source of the information is not disclosed.[5]

[4] Affidavit of the defendant filed 31 March 2020 at [19].

[5] Affidavit of L J Preston filed 28 September 2018, Exhibit LJP 3.

1. On 26 October 2018 the plaintiffs’ solicitors effected service by post and…