Skyshades Holding Pty Ltd v Caterer - [2011] QDC 241

DISTRICT COURT OF QUEENSLAND

CITATION:

Skyshades Holding Pty Ltd v Caterer [2011] QDC 241

PARTIES:

SKYSHADES HOLDING PTY LTD
(Appellant)

AND

CHRISTOPHER GARY CATERER
(Respondent)

FILE NO/S:

Appeal 2587/11

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Stanthorpe.

DELIVERED ON:

5 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2011

JUDGE:

McGill DCJ

ORDER:

Appeal allowed; order of the magistrate of 27 June 2011 set aside; order in lieu that the default judgment signed on 4 May 2011 by the registrar of the Magistrates Court at Stanthorpe be set aside, proceedings be transferred to the Magistrates Court at Brisbane, the plaintiff provide the particulars of the statement of claim requested on 27 April 2011 within 14 days, extend time for filing and serving the notice of intention to defend and defence until 14 days after receipt of those particulars, and the plaintiff pay the defendant’s costs of the application to be assessed; the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

CATCHWORDS:

PRACTICE – Default judgment – whether irregular when action commenced in wrong Magistrates Court – whether defence on merits shown.

PRACTICE – Default judgment – signed after unanswered request for particulars and extension of time for filing notice of intention to defend – bad practice – relevant to costs of application to set aside.

UCPR r 35, r 290.

Collier v Liebrecht [1983] 2 Qd R 726 - applied.
Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 – cited.
Jiona Investments Pty Ltd v Medihelp General Practice Pty Ltd [2010] QCA 99 – applied.
National Australia Bank Limited v Singh [1995] 1 Qd R 337 – cited.
National Mutual Life Association of Australasia Limited v Oasis Developments Pty Ltd [1983] 2 Qd R 441 – applied.
Reid Murray Development Queensland Pty Ltd v Lynwood Holdings Pty Ltd [1964] QWN 1 – cited.
Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 – followed.

COUNSEL:

S J Given for the appellant.

W F Brown for the respondent.

SOLICITORS:

This is an appeal from the decision of a magistrate in Stanthorpe who on 27 June 2011 dismissed an application to set aside a default judgment which had been signed by the acting Registrar in Stanthorpe on 4 May 2011.

On 23 March 2011 the plaintiff had filed a claim in the Stanthorpe Magistrates Court claiming a debt of $43,000-odd and interest and costs. The statement of claim, after alleging that the parties are capable of suing and being sued, alleges that between June 2009 and August 2010 the plaintiff, at the request of the defendant, provided design and drafting services to the defendant and the plaintiff had issued invoices for the work done and the defendant owes the plaintiff $43,000 odd for the work he has done for the defendant. The pleading is reminiscent of the old common law declaration in indebitatus. It provided the bare minimum of the claim and significantly did not allege that the work…

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: [2011] QDC 241
Decision Date: 5 October 2011

CaseChat Overview and Summary

In the case of Skyshades Holding Pty Ltd v Caterer, the plaintiff sought to enforce a default judgment against the defendant, which had been entered due to the defendant's failure to respond to the plaintiff's proceedings. The proceedings were initiated in the Magistrates Court at Stanthorpe, despite the proper jurisdiction being in the Magistrates Court at Brisbane. The defendant subsequently applied to set aside the default judgment on the basis that the proceedings were commenced in the wrong court, and also raised a defence on the merits.

The court was required to determine whether the default judgment was irregular due to the action being commenced in the wrong Magistrates Court, and whether a defence on the merits had been demonstrated by the defendant. The court also considered the procedural conduct of the plaintiff in signing the default judgment after an unanswered request for particulars and an extension of time to file a notice of intention to defend.

The court found that the default judgment was irregular because the proceedings were instituted in the wrong Magistrates Court. Additionally, the court found that the defendant had demonstrated a defence on the merits. The court also noted the bad practice of the plaintiff in signing the default judgment after the defendant's request for particulars and extension of time. As a result, the appeal was allowed, and the order setting aside the default judgment was set aside. Instead, the court ordered that the default judgment be set aside, the proceedings be transferred to the Magistrates Court at Brisbane, and the plaintiff provide the particulars requested by the defendant. The court also ordered that costs be paid by both parties.

The final orders of the court were that the order of the magistrate of 27 June 2011 be set aside, and in lieu, the default judgment signed on 4 May 2011 be set aside, proceedings be transferred to the Magistrates Court at Brisbane, the plaintiff provide the particulars of the statement of claim requested on 27 April 2011 within 14 days, extend time for filing and serving the notice of intention to defend and defence until 14 days after receipt of those particulars, and the plaintiff pay the defendant’s costs of the application to be assessed; the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

Orders

Orders of the court

Appeal allowed; order of the magistrate of 27 June 2011 set aside; order in lieu that the default judgment signed on 4 May 2011 by the registrar of the Magistrates Court at Stanthorpe be set aside, proceedings be transferred to the Magistrates Court at Brisbane, the plaintiff provide the particulars of the statement of claim requested on 27 April 2011 within 14 days, extend time for filing and serving the notice of intention to defend and defence until 14 days after receipt of those particulars, and the plaintiff pay the defendant’s costs of the application to be assessed; the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

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:	Skyshades Holding Pty Ltd v Caterer [2011] QDC 241
PARTIES:	SKYSHADES HOLDING PTY LTD (Appellant) AND CHRISTOPHER GARY CATERER (Respondent)
FILE NO/S:	Appeal 2587/11
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Stanthorpe.
DELIVERED ON:	5 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2011
JUDGE:	McGill DCJ
ORDER:	Appeal allowed; order of the magistrate of 27 June 2011 set aside; order in lieu that the default judgment signed on 4 May 2011 by the registrar of the Magistrates Court at Stanthorpe be set aside, proceedings be transferred to the Magistrates Court at Brisbane, the plaintiff provide the particulars of the statement of claim requested on 27 April 2011 within 14 days, extend time for filing and serving the notice of intention to defend and defence until 14 days after receipt of those particulars, and the plaintiff pay the defendant’s costs of the application to be assessed; the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.
CATCHWORDS:	PRACTICE – Default judgment – whether irregular when action commenced in wrong Magistrates Court – whether defence on merits shown. PRACTICE – Default judgment – signed after unanswered request for particulars and extension of time for filing notice of intention to defend – bad practice – relevant to costs of application to set aside. UCPR r 35, r 290. Collier v Liebrecht [1983] 2 Qd R 726 - applied. Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 – cited. Jiona Investments Pty Ltd v Medihelp General Practice Pty Ltd [2010] QCA 99 – applied. National Australia Bank Limited v Singh [1995] 1 Qd R 337 – cited. National Mutual Life Association of Australasia Limited v Oasis Developments Pty Ltd [1983] 2 Qd R 441 – applied. Reid Murray Development Queensland Pty Ltd v Lynwood Holdings Pty Ltd [1964] QWN 1 – cited. Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 – followed.
COUNSEL:	S J Given for the appellant. W F Brown for the respondent.
SOLICITORS: