Tidy v Kastaccs Pty Ltd

[2005] QDC 274

[2005] QDC 274

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 640 of 2005

ROBERT COLIN TIDY	Plaintiff
and
KASTACCS PTY LTD (ACN 107 990 447) AS TRUSTEE FOR THE JAMIESON FAMILY TRUST	Defendant

BRISBANE

..DATE 06/09/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 284, r 288,
r 476, r 477, r 507.  Assessment of damages pursuant to a default judgment entered in the Supreme Court adjourned to a date to be fixed when plaintiff failed to appear

HIS HONOUR:  If the plaintiff will forgive use of the expression, this is an occasion to tidy up a situation which was before the Court on the 24th of August when I was applications Judge. 

What was dealt with was the application made by Ffrench Commercial Lawyers for leave to withdraw as solicitors for the plaintiff. The application was presented by a solicitor, Mr Wardrobe as town agent for those applicant solicitors. The application was successful. It was obscure whether or not there had also been formally listed before the Court the assessment of the plaintiff's damages pursuant to rule 507 of the UCPR, in particular sub rule (3)(a).

The plaintiff obtained a judgment from the Deputy Registrar in the Supreme Court on the 2nd of February 2005 "that the defendant pay to the plaintiff damages to be assessed upon the plaintiff's statement of claim together with costs to be assessed and that damages be assessed by the District Court."

Now the judgment was presumably given under rule 288, having regard to its terms, although it may have been under rule 284; the circumstances are unclear. 

There is no reason to doubt the view expressed in the annotations in Butterworths' publication Civil Procedure Queensland in respect of rule 507 and subsequent rules that the assessment is to be conducted as if it were a trial. It was a trial at which no party appeared. In particular, although called twice, the plaintiff did not appear. Rule 476 does not particularly assist in that situation. In my view, the plaintiff's claim was sufficiently complicated so that the Court was entitled to require assistance (which may have been assistance in the form of evidence) to justify or support some or all of the components in the claim which was for:

1. Legal costs incurred to date in accordance with paragraph 23(4) of the statement of claim;

   2.Total liquidated damages;

   3.Solicitor and own client costs in accordance with paragraph 23(1) of the statement of claim from 21 October 2004 to date of judgment;

   4.Interest on the deposit monies accruing at the rate of $15.07 per day from 3 September 2004 to date of judgment;

   5.Interest on the lost use of the purchase price in accordance with paragraph 23(3) of the statement of claim at the rate of $753.42 per day from 14 October 2004 to date of judgment;

   6.Any deficiency in price on resale of the property and any expenses connected with the contract for the resale, any failed attempt to resell and the resale;

   7.Interest at the default rate of eleven percent (11%) on any judgment for money payable under the sale contract from date of judgment to date of payment; and

   8.    Costs."

The defendant is sued as a defaulting purchaser under a contract of sale of lot 13 on registered plan 897483 County of Ward, Parish of Mundoolan, for $2,500,000. 

The registrar requires some assistance from the Court in regularising things now.  I have perused the file, it is not clear from it how the assessment proceeding got to be set down for the 24th of August 2005.  Accepting that this happened, there was identified a date on which it was useful for Ffrench Commercial Lawyers to make their application.  Material before the Court indicated that the firm had been unable to obtain instructions from the plaintiff and that he was in receipt, through email communications which he acknowledged getting (by way of distinction from posted communications), of advice of the hearing date.

In the circumstances the plaintiff should not have been treated as having made any case for damages to be certified in any particular amount.  The defendant which may well not be worth powder and shot did not appear either.  It has done nothing in the proceeding.  It would seem unjust to determine the matter peremptorily, either by giving the plaintiff complete success which would have committed the Court to complex calculations of interest and the like or by penalising the plaintiff by assessing the damages at some illusory amount or nothing at all.  The plaintiff has a judgment which could not have been set aside. 

In the circumstances the appropriate thing for the Court to do was act under rule 477 and adjourn the trial, that is, the assessment, back to the Registrar so that after contact has been made with somebody who is prepared to take an interest it can be listed again on or before the applications Judge or on the civil callover.  To the extent that the assessment matter was before the Court on the 24th of August this year it is adjourned to a date to be fixed.

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