Smith v. Maxlaw Pty Ltd

[2007] QDC 105

[2007] QDC 105

DISTRICT COURT

CIVIL JURISDICTION

JUDGE DEARDEN

No BS2789 of 2006

MURRAY FRANCIS SMITH	Plaintiff
and
MAXLAW PTY LTD	Defendant

BRISBANE

..DATE 03/05/2007

ORDER

HIS HONOUR:  This is an application for assessment of damages pursuant to rule 284 of the Uniform Civil Procedure Rules (UCPR).  Default judgment in this matter was entered before a Deputy Registrar of the District Court on 14 November 2006. 
The judgment of the Court on that occasion was that the defendant, having not filed a notice of intention to defend, the defendant pay to the plaintiff damages to be assessed on the plaintiff's statement of claim, together with costs to be assessed, and that the damages be assessed by the District Court.

The matter has been listed for hearing today (3 May 2007) for the assessment of damages.  As a matter of caution, the name of the defendant, Maxlaw Pty Ltd, was called three times in the precincts of the Court but there was no appearance by or on behalf of the defendant corporation.

Mr Howell, who appears for the plaintiff in these proceedings, tendered a letter (Exhibit 2) which his instructing solicitors had forwarded to the defendant company, Maxlaw Pty Ltd, advising them of the time and date of the assessment.  Despite that advice, no further response has been received.  I note that the basis for entering of default judgment by the Deputy Registrar on 14 November 2006 was on the basis the defendant had not filed a notice of intention to defend nor, of course, was there any appearance on that occasion.

The plaintiff in these proceedings, Murray Francis Smith, has sworn an affidavit, incorrectly dated 30th of May 2007, although I note that the exhibits are in fact correctly dated as 30 April 2007 in their certifications.  Mr Smith gave evidence in these proceedings adopting the affidavit and correcting the date of signature to 30th of April 2007.

The claim as pleaded was a claim for damages for breach of contract.  Mr Howell, however, submits (and this appears to be uncontroversial, in my view) that the true nature of the claim is a debt for moneys due and owing pursuant to a loan.  The total sum of $200,000 was, as appears from paragraphs 7 - 10 of the plaintiff's affidavit, advanced by way of a series of sums commencing with the sum of $50,000 on 2 December 2004 proceeding through sums of $50,000 on 26 February 2005, $60,000 on 11 May 2006 (which I note from Exhibit MFS2 should in fact read 11 May 2005 even though the affidavit refers to 11 May 2006 - see para 9) and the final deposit of $40,000 on 15 June 2005, a total of $200,000.

The plaintiff swears in his affidavit to having, in accordance with the oral agreement between himself and the corporation Maxlaw Pty Ltd, made a demand for the repayment of the sum of $200,000 on 28 February 2007, that being a period of more than 45 days between then and now.  I note, however, that although that date is cited as 28 February 2007 in paragraph 15 of the affidavit, the statement of claim in fact notes that the notice by the plaintiff was made on 28 February 2006.

Mr Howe, I take it that that's a typo in the affidavit?

MR HOWE:  That's so, your Honour.

In any event, the request for default judgment was based upon that demand for return of the $200,000 as pleaded within 25 days, which was not complied with.  The plaintiff swears in paragraph 18 of his affidavit that no amount has been repaid by Maxlaw Pty Ltd.

As Mr Howe indicated in his oral submissions, there is no claim made for anything other than the principal sum of $200,000 and, in the circumstances, it is, in my view, entirely appropriate that damages should be assessed at that amount.  Accordingly, I order as follows:

Damages be assessed in the sum of $200,000 pursuant to the judgment entered on 14 November 2006;

The defendant pay the plaintiff's costs of and incidental to the proceedings, to be assessed on a standard basis.

That order is as per draft which I have amended to reflect the fact that the judgment was entered on 14 November 2006 and I also note that the original costs of that have already been assessed, so it is only any further costs, of course, today.

-----