Thomas v Kendon

[2012] QDC 95

DISTRICT COURT OF QUEENSLAND

CITATION:

Thomas & Anor v Kendon & Ors [2012] QDC 95

PARTIES:

KELLIE RENEE THOMAS
(plaintiff)

and

TIMOTHY PEARCE
(second plaintiff)

v

MICHAEL GRANT KENDON
(defendant)

and

TRADING POWER PTY LTD ACN 124 688 955
(second defendant)

and

MMTL PTY LTD ACN 113 855 299
(third defendant)

FILE NO/S:

535/11

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

11 May 2012

DELIVERED AT:

Southport

HEARING DATE:

16 April 2012

JUDGE:

Newton DCJ

ORDER:

1.          The judgment entered 4 January 2012 against the first and second and third defendants in the absence of the filing of a Notice of Intention to Defend be set aside;

2.          The first and second and third defendants to file and service a Notice of Intention to Defend within 14 days of the judgment identified in number 1 above being set aside; and

3.          The plaintiffs pay the costs of the defendants of and incidental to the application.

COUNSEL:

C. Garlick, for the first and second plaintiffs

D. Keane, for the first, second and third defendants

SOLICITORS:

Aitken & Wilson Lawyers for the first, second and third defendants

1. This is an application to set aside the plaintiff’s default judgment obtained on 4 January 2012 pursuant to Rule 290 of the Uniform Civil Procedure Rules 1999 (Qld). The defendants apply to set aside the default judgment on three bases:

1.          that the default judgment was irregular;

2.          there was an agreement that the judgment be set aside by consent from which the plaintiffs have resiled; and

3.          there is a prima facie defence to the claim on the merits and the Court should set aside the judgment.

1. The first defendant, Mr Kendon, is the sole director and shareholder of the second and third defendants.  He resides at Port Macquarie, New South Wales.  The registered offices of both the second and third defendants are also located in Port Macquarie, New South Wales.

1. The plaintiffs claim that they gave money to the defendants based on promises that the money would be invested and available for return upon request.  It is alleged that Mr Kendon has ignored the plaintiffs’ requests for over a year to return the money.  Proceedings were filed in this Court on 28 November 2011.  The sealed Claims and Statements of Claim were forwarded to a process server in Port Macquarie who served them upon -

1.          the first defendant – personally at his place of employment;

2.          the second defendant – at its registered office which is also the residence of the first defendant;

3.          the third defendant – at its registered office which is also the residence of the first defendant.

1. The plaintiffs assert that they were entitled to seek default judgment on 4 January 2012 as none of the defendants had filed a Notice of Intention to Defence, or Defence or otherwise sought to challenge the jurisdiction of the proceeding.

1. The defendants contend that, as Mr Kendon does not reside within the State of Queensland, for service to be…