Yorston and Yorston v Bevacqua

[2011] QDC 176

[2011] QDC 176

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1257 of 2010

DAVID MARK YORSTON	First Plaintiff
and
SHIRLEY JOYCE YORSTON	Second Plaintiff
and
BEVACQUA & ANOR	Defendants

BRISBANE

..DATE 09/08/2011

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 302

Default judgement against first defendant set aside - as to merits, first defendant swore that the loan moneys claimed had been lent to the second defendant who was the plaintiffs' daughter, not to him - no judgement had been entered against her
HIS HONOUR: The default judgement againt the first defendant is set aside. He is allowed four days to file a notice of intention to defend and defence. The court's reasons for those orders amount to (a) the first defendant against whom a default judgment was entered having given a sufficient explanation for his failure to file a notice of intention to defend and defence within the appropriate time, (b) delay in making this application having been sufficiently explained and, for all that appears, not occasioning any prejudice to the plaintiffs and (c) his having a prima facie defence on the merits. This last is regarded as the most important consideration in the exercise of the discretion; see Cook v D A Manufacturing Co Pty Ltd [2004] QCA 52 at paragraphs 15 to 19.

Mr Given in representing the plaintiff/respondents identifies the same three factors.  He concedes that the first defendant has probably made out the first but resists the suggestion that he's made out the others.  The explanation for inaction is the first defendant's distress at relevant times owing to a break up of his marriage with the second defendant who happens to be the daughter of the plaintiffs and the mother of his child.  He says, and the court is inclined to accept, that he was distracted by considerations to do with the break up and the disruption of his role as a father.  He was served pursuant to an order for substituted service made by the court but acknowledges that the proceeding came to his attention.

The statement of claim asserts that the plaintiffs lent $150,000 to the defendants who, it was pleaded, carried on a business as project managers and manufacturers of joinery under a registered business name.  The loan was made in 2008.  Although it's pleaded to have been made to both defendants, and the second defendant was joined in the proceeding, the plaintiffs have no interest in obtaining a judgment against her which to my mind bespeaks perhaps a justifiable, I do not know, animus against the first defendant.  He swears in his affidavit that the loan was made to the second defendant.  It's clear enough that he took advantage of it and that the loan monies were applied in the business. 

It's also clear that, to the extent that payments were made against the loan, they were made by the business if not by him personally.  Bank records show him as the payer.  I'm not disposed to the view that that indicates that the sole or any responsibility to make the payments rested on him.  In my view, one's  general experience of life makes entirely credible an assertion that in family contexts like the present, the parents of one spouse inclined to help the next generation may elect to do so by advancing their own child, who's left to make a judgment as to how to apply the moneys.  I think there is an issue fit for trial here as to what the loan arrangements were.  The plaintiffs haven't been able to produce any documentation of any agreement relating to the loan to show who the borrowers were.

Mr Tolton for the applicant/first defendant concedes that his client requires an indulgence, that his, ignoring the proceeding as he did put the plaintiffs to costs that have now been wasted, so it's reasonable that he ought to pay the costs.  One observation I would make is that in the circumstances, it may well have been misleading to him to see the second defendant as a party.  One would ordinarily assume that redress as to at least 50 per cent was being sought against her but that appears not to have been the plaintiffs' intention.  If she has been served with the claim and statement of claim (which seems unlikely), she has filed no notice of intention to defend.

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