Teague v Phillis

DISTRICT COURT OF QUEENSLAND

CITATION:

Teague v Phillis [2003] QDC 346

PARTIES:

DONNA MARY TEAGUE

Applicant

and

COLIN ALBERT PHILLIS

Respondent

FILE NO/S:

833/2000

DIVISION:

District Court

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

10^th October 2003

DELIVERED AT:

Southport

HEARING DATE:

29^th September 2003

JUDGE:

R D Hall DCJ

ORDER:

[1]      I order that the judgment by default of defence made on 23^rd February 2001 be set aside and that the defendant have leave to file a defence and counterclaim within 28 days of this date.

   [2]      I order that the defendant pay the plaintiff’s costs thrown away as a result of the judgment being set aside and of this application to be assessed.

CATCHWORDS:

PRACTICE AND PROCEDURE—Setting aside Judgment in default of Defence—Lengthy delay by applicant—Deficits in literacy and limited comprehension skills—Jointly owned land  applicant’s interest divested by Judgment—Liability under Personal covenants continued-Security for Costs not warranted

Cases cited:

re South Downs Packers (1984) 2 Qd R 559
National Mutual Life Association of Australasia v Oasis Developments Pty Ltd (1983) 2 Qd R 441
Yuruga Nursery Proprietary Limited v Australian Tea Tree Management Limited (2000) QSC 297

COUNSEL:

Mr M Eastwood  for the applicant 

Mr S J English for the respondent

SOLICITORS:

Lehns for the applicant 

Bennett & Devery for the respondent

1. This application filed on 8^th September 2003 is for an order to set aside judgment by default entered on 23^rd February 2001.    In a statement of claim filed on 4^th of October 2000 the plaintiff sought declarations that the defendant held his right title and interest in real and personal property on trust for the plaintiff and an Order that the defendant convey his title and interest in that property to the plaintiff.  No defence was filed and the default judgment ensued. 

1. The applicant swears that prior to the action solicitors acting for him had forwarded two letters to solicitors for the plaintiff concerning the sale of the jointly owned home.  There was no response to that correspondence and the defendant says that he expected any further action concerning the matter to occur as between the solicitors.  He received the respondent’s claim and statement of claim on 3^rd of November 2000.  The documents were “thrown” at him and he did not sign for them.  The only previous court proceedings he had experienced were applications by each of the parties for restraining orders against the other.  The respondent’s application then was served on the applicant by a police officer and he considered the delivery of documents in the manner it was performed lacked the formality he expected of service of official court documents.  He had limited knowledge of court processes and limited ability to read and write.

1. On about 29^th May 2001 he was served with what he now realises were a letter from the respondent’s solicitors, a copy of the default judgment and transfer documents relating to the subject real property. 

1. He saw what he thought…