Versace Timbers Pty Ltd v Stojanovic - [2019] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

Versace Timbers Pty Ltd v Stojanovic [2019] QDC 127

PARTIES:

VERSACE TIMBERS PTY LTD
ACN 010 145 374
(plaintiff)

v

MICHAEL STOJANOVIC
(defendant)

FILE NO/S:

3927 of 2018

DIVISION:

Civil

PROCEEDING:

Application for default judgment

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

30 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 June 2019

JUDGE:

Porter QC DCJ

ORDER:

1. Default judgment in the amount of $96,922.70.

2. Application for default declaratory relief is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – where the plaintiff alleges that money is owing under a contractual agreement and that certain property is charged in their favour – where substituted service has been effected and no defence has been filed – where the plaintiff applies for default judgment seeking a money order and declaratory relief – where the application is made under rule 288 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the pleadings justify an order for declaratory relief – whether default judgment for money owing or declaratory relief may be ordered

Uniform Civil Procedure Rules 1999 (Qld), r 281, r 283, r 288, r 658

Egan v Posman [2018] QDC 53
Oversea-Chinese Banking Corp Ltd v Becker [2004] 1 Qd R 409

COUNSEL:

On the papers

SOLICITORS:

On the papers

This is an application for a default judgment under r. 288 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). That rule provides:

(1) This rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283, 284, 285 or 286.

(2) The plaintiff may apply to the court for a judgment.

(3) On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.

The plaintiff seeks two forms of order for judgment in default:

(a) Judgment in the amount of $96,922.70 or $91,863.33, an amount that includes costs and interest (calculated by two alternative methods) incurred up to the date its application was filed.

(b) A declaration that by Clause 2 of the guarantee agreement entered between the plaintiff and defendant on or about 20 September 2017:

(i) The defendant granted a charge to the plaintiff in respect of the defendant’s estate and interest in Lot 92 Registered Plan 116082 Title Reference 14171044 (the Property); and

(ii) The said charge charges the interest of the defendant in the Property with payment of all monies due and owing by the defendant to the plaintiff.

The rules referred to in rule 288(1) include, relevantly, rule 283 which provides:

(1) This rule applies if the plaintiff’s claim against the defendant in default is for a debt or liquidated demand, with or without interest.

(2) The plaintiff may file a request for judgment for an amount not more than the amount claimed, together with—

(a) if interest is claimed—interest calculated, to the date…

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: [2019] QDC 127
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of Versace Timbers Pty Ltd versus Stojanovic, the plaintiff, Versace Timbers, sought a declaration and payment from the defendant, Stojanovic, alleging that money was owing under a contractual agreement and that certain property was charged in their favour. The plaintiff made the application for default judgment after substituted service was effected and no defence was filed by the defendant. The court was required to determine whether the pleadings justified an order for declaratory relief and whether default judgment could be granted for the money owed or for the declaratory relief.

The court examined the application under rule 288 of the Uniform Civil Procedure Rules 1999 (Qld), noting that for declaratory relief, the court must be satisfied that the plaintiff has made out a case which justifies the making of the declaration sought. In this instance, the court found that the plaintiff's pleadings did not justify an order for declaratory relief as they did not establish a sufficient basis for the declaration sought. However, regarding the money owed, the court determined that the plaintiff had established a prima facie case for the amount claimed, and thus, default judgment could be granted for the sum of $96,922.70.

The court dismissed the application for default declaratory relief and granted default judgment in the amount of $96,922.70. The final orders of the court were that default judgment be entered in favour of Versace Timbers Pty Ltd for the sum of $96,922.70, and the application for default declaratory relief be dismissed.

Orders

Orders of the court

1. Default judgment in the amount of $96,922.70.

2. Application for default declaratory relief is dismissed.

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:	Versace Timbers Pty Ltd v Stojanovic [2019] QDC 127
PARTIES:	VERSACE TIMBERS PTY LTD ACN 010 145 374 (plaintiff) v MICHAEL STOJANOVIC (defendant)
FILE NO/S:	3927 of 2018
DIVISION:	Civil
PROCEEDING:	Application for default judgment
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	30 July 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28 June 2019
JUDGE:	Porter QC DCJ
ORDER:	1. Default judgment in the amount of $96,922.70. 2. Application for default declaratory relief is dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – where the plaintiff alleges that money is owing under a contractual agreement and that certain property is charged in their favour – where substituted service has been effected and no defence has been filed – where the plaintiff applies for default judgment seeking a money order and declaratory relief – where the application is made under rule 288 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the pleadings justify an order for declaratory relief – whether default judgment for money owing or declaratory relief may be ordered Uniform Civil Procedure Rules 1999 (Qld), r 281, r 283, r 288, r 658 Egan v Posman [2018] QDC 53 Oversea-Chinese Banking Corp Ltd v Becker [2004] 1 Qd R 409
COUNSEL:	On the papers
SOLICITORS:	On the papers