Tasmanian Bluefin Pty Ltd v Bald - [2013] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:

Tasmanian Bluefin Pty Ltd v Bald & Anor [2013] QDC 297

PARTIES:

TASMANIAN BLUEFIN PTY LTD
(ACN 07524753)

(plaintiff/applicant)

v

GRAHAM NORMAN BALD

(first defendant)

and

JO-ANNE MONTGOMERY

(second defendant)

FILE NO/S:

D136/2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

29 November 2013 (Reasons & Further Orders)

DELIVERED AT:

Maroochydore

HEARING DATE:

8 & 15 November 2013

JUDGE:

Long SC DCJ

ORDERS:

15/11/13

That the plaintiff have judgment against the defendants for the amount of $80,950.67 including $10,135.17 interest and $3,315.50 costs.1.

It is declared that the plaintiff holds an equitable charge over the vessel “Annandale”, Australian Ship Registration Official No. 855441. 2.

Otherwise the application for further orders is adjourned until the publication of formal reasons.3.

29/11/13

The Vessel “Annandale”, Australian Ship Registration Official No. 855441 be sold. 1.

The Plaintiff be appointed to conduct the sale of the said Vessel2.           and be appointed pursuant to s 99(7) of the Property Law Act 1974 to convey the Vessel upon the sale of the Vessel in accordance with these orders.

In regard to the conduct of the said sale the Court directs as follows:-3.

Before selling the Vessel the Plaintiff give notice to the Defendants containing the information prescribed in Section 130(2) of the Personal Property Securities Act 2009 (Cth) (“the Act”) and attach to such notice a copy of the Orders made by this Court in respect of the Application filed on 1 November, 2013, which notice shall be deemed to be given to the Defendants by sending the notice to the Defendants by ordinary pre-paid post to the addresses at which they were served with the Claim in these proceedings.(a)

The Plaintiff must act in the manner prescribed by Section 131 of the Act and as required of a secured party in respect of the sale of the Vessel.(b)

The proceeds of sale of the Vessel must be applied in the order of application prescribed by Section 140(2) of the Act with the exception, but subject to any other or further direction of the Court, that the balance of the proceeds of sale after application of the amounts under Section 140(2)(a)-(e) shall be paid into Court for the Defendants.(c)

The plaintiff have liberty to apply4.

CATCHWORDS:

PROCEDURE – DEFAULT OF PLEADINGS- Where applicant sought default judgment under UCPR 288 upon failure of defendant to file defence – whether any evidence required in support of the judgment claimed

EQUITY- EQUITABLE CHARGES AND LIENS –

The applicant claims against the defendants for unpaid instalment payments of the purchase price of a Vessel- whether the unpaid balance was secured by an equitable lien over the Vessel-whether declatory relief appropriate

JUDGMENT-ENFORCEMENT-whether the judgment in respect of a debt should be enforced by the appointment of a receiver and/or sale of the Vessel under s 99(2) of the Property Law Act 1974, consequent upon declaration of an equitable interest in the Vessel-consideration of the conditions to be imposed, pursuant to s 99(2)…

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: [2013] QDC 297
Decision Date: 29 November 2013 (Reasons & Further Orders)

CaseChat Overview and Summary

The case of Tasmanian Bluefin Pty Ltd v Bald involved the plaintiff seeking a default judgment against the defendants for the amount of $80,950.67 plus interest and costs. The plaintiff also sought an equitable charge over the vessel “Annandale”, Australian Ship Registration Official No. 855441. The defendants failed to file a defence, leading to the plaintiff's application for default judgment under UCPR 288. The court had to decide whether any evidence was required in support of the judgment claimed and whether the plaintiff held an equitable charge over the vessel. The court found that the plaintiff was entitled to the default judgment as no evidence was required to support the claim. The court also found that the plaintiff held an equitable charge over the vessel.

The court reasoned that the defendants' failure to file a defence meant that the plaintiff was entitled to the relief claimed in the originating application. The court noted that there was no requirement for the plaintiff to provide evidence in support of the judgment claimed, as the defendants had failed to plead to the claim. The court also found that the plaintiff had an equitable charge over the vessel, which was created by an agreement between the parties. The court noted that the equitable charge was enforceable against the defendants, who were in default of their obligations under the agreement.

The court ordered that the plaintiff have judgment against the defendants for the amount of $80,950.67 plus interest and costs. The court also declared that the plaintiff held an equitable charge over the vessel “Annandale”, Australian Ship Registration Official No. 855441. The court adjourned the application for further orders until the publication of formal reasons. The court later ordered that the vessel be sold and that the plaintiff be appointed to conduct the sale of the vessel. The court also directed that the plaintiff give notice to the defendants before selling the vessel and that the proceeds of the sale be applied in the order prescribed by the Personal Property Securities Act 2009. The plaintiff was given liberty to apply for further orders.

Orders

Orders of the court

15/11/13

That the plaintiff have judgment against the defendants for the amount of $80,950.67 including $10,135.17 interest and $3,315.50 costs.1.

It is declared that the plaintiff holds an equitable charge over the vessel “Annandale”, Australian Ship Registration Official No. 855441. 2.

Otherwise the application for further orders is adjourned until the publication of formal reasons.3.

29/11/13

The Vessel “Annandale”, Australian Ship Registration Official No. 855441 be sold. 1.

The Plaintiff be appointed to conduct the sale of the said Vessel2. and be appointed pursuant to s 99(7) of the Property Law Act 1974 to convey the Vessel upon the sale of the Vessel in accordance with these orders.

In regard to the conduct of the said sale the Court directs as follows:-3.

Before selling the Vessel the Plaintiff give notice to the Defendants containing the information prescribed in Section 130(2) of the Personal Property Securities Act 2009 (Cth) (“the Act”) and attach to such notice a copy of the Orders made by this Court in respect of the Application filed on 1 November, 2013, which notice shall be deemed to be given to the Defendants by sending the notice to the Defendants by ordinary pre-paid post to the addresses at which they were served with the Claim in these proceedings.(a)

The Plaintiff must act in the manner prescribed by Section 131 of the Act and as required of a secured party in respect of the sale of the Vessel.(b)

The proceeds of sale of the Vessel must be applied in the order of application prescribed by Section 140(2) of the Act with the exception, but subject to any other or further direction of the Court, that the balance of the proceeds of sale after application of the amounts under Section 140(2)(a)-(e) shall be paid into Court for the Defendants.(c)

The plaintiff have liberty to apply4.

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:	Tasmanian Bluefin Pty Ltd v Bald & Anor [2013] QDC 297
PARTIES:	TASMANIAN BLUEFIN PTY LTD (ACN 07524753) (plaintiff/applicant) v GRAHAM NORMAN BALD (first defendant) and JO-ANNE MONTGOMERY (second defendant)
FILE NO/S:	D136/2013
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	29 November 2013 (Reasons & Further Orders)
DELIVERED AT:	Maroochydore
HEARING DATE:	8 & 15 November 2013
JUDGE:	Long SC DCJ
ORDERS:	15/11/13 That the plaintiff have judgment against the defendants for the amount of $80,950.67 including $10,135.17 interest and $3,315.50 costs.1. It is declared that the plaintiff holds an equitable charge over the vessel “Annandale”, Australian Ship Registration Official No. 855441. 2. Otherwise the application for further orders is adjourned until the publication of formal reasons.3. 29/11/13 The Vessel “Annandale”, Australian Ship Registration Official No. 855441 be sold. 1. The Plaintiff be appointed to conduct the sale of the said Vessel2. *and be appointed pursuant to s 99(7) of the Property Law Act* 1974 to convey the Vessel upon the sale of the Vessel in accordance with these orders.** In regard to the conduct of the said sale the Court directs as follows:-3. Before selling the Vessel the Plaintiff give notice to the Defendants containing the information prescribed in Section 130(2) of the Personal Property Securities Act 2009 (Cth) (“the Act”) and attach to such notice a copy of the Orders made by this Court in respect of the Application filed on 1 November, 2013, which notice shall be deemed to be given to the Defendants by sending the notice to the Defendants by ordinary pre-paid post to the addresses at which they were served with the Claim in these proceedings.(a) The Plaintiff must act in the manner prescribed by Section 131 of the Act and as required of a secured party in respect of the sale of the Vessel.(b) The proceeds of sale of the Vessel must be applied in the order of application prescribed by Section 140(2) of the Act with the exception, but subject to any other or further direction of the Court, that the balance of the proceeds of sale after application of the amounts under Section 140(2)(a)-(e) shall be paid into Court for the Defendants.(c) The plaintiff have liberty to apply4.
CATCHWORDS:	PROCEDURE – DEFAULT OF PLEADINGS- Where applicant sought default judgment under UCPR 288 upon failure of defendant to file defence – whether any evidence required in support of the judgment claimed EQUITY- EQUITABLE CHARGES AND LIENS – The applicant claims against the defendants for unpaid instalment payments of the purchase price of a Vessel- whether the unpaid balance was secured by an equitable lien over the Vessel-whether declatory relief appropriate JUDGMENT-ENFORCEMENT-whether the judgment in respect of a debt should be enforced by the appointment of a receiver and/or sale of the Vessel under s 99(2) of the Property Law Act 1974, consequent upon declaration of an equitable interest in the Vessel-consideration of the conditions to be imposed, pursuant to s 99(2)…