Body Corporate for Koolamara v Bennett [2019] QMC 15

MAGISTRATES COURTS OF QUEENSLAND CITATION: Body Corporate for Koolamara v Bennett [2019] QMC 15 PARTIES: Body Corporate for Koolamara CTS 14048 (Respondent/Plaintiff) v Diane Therese BENNETT (Applicant/Defendant) FILE NO/S: M50578/19 PROCEEDING: Application to set aside default judgment ORIGINATING COURT: Registry at Southport DELIVERED ON: 12 December 2019 DELIVERED AT: Southport HEARING DATE: 11 October 2019 MAGISTRATE: A.H. Sinclair ORDER: The whole of the default judgment of the registrar given 12 June 2019 is set aside as having been irregularly entered. CATCHWORDS: Default Judgment – Application to set aside – Irregularly entered – Judgment given for more than amount claimed – Judgment given for amounts not pleaded Body Corporate and Community Management (Accommodation Module) Regulation 2008 s.139(1) Building Units and Group Titles Act 1980 ss.139, 143 Civil Proceedings Act 2011 s.58 Magistrates Court Act 1921 s.4 Uniform Civil Procedure Rules 1999 rr. 5, 22, 149, 158, 159, 7-Eleven Stores Pty Ltd v United Petroleum Pty Ltd & Anor (No 2) [2011] QSC 267 SOLICITORS: The applicant appeared for herself The respondent did not appear -- 1 of 8 -- 2 Background [1] Ms Bennett did not pay all the levies the Body Corporate (BC) levied on her by the due date. It filed a claim and statement of claim. She did not file a defence. Default judgment was granted by the registrar. [2] Ms Bennett bought an application to set aside the judgment. She appeared but the BC did not. Its lawyers communicated to the registry that they had no instructions to appear. [3] I ordered that the default judgment be set aside on the basis that the whole of it was irregularly entered for reasons to be published. These are those reasons. [4] Unpaid levies are a statutory debt. Pleading and proving them should be a simple matter. [5] The UCPR governs the conduct of civil litigation in Queensland. It has requirements clearly set out to ensure that defendants are to be made aware of the case against them. Judgment can only be given on matters properly pleaded. [6] Like many ‘simple debt recovery’ matters filed in the Magistrates Court, the Statement of Claim and Claim do not comply with those rules. The Claim [7] The Claim sought 1. $8,879.21 for unpaid contribution levies 2. Any further contribution levied in accordance with the Body Corporate and Community Management (Accommodation Module) Regulation 2008 3. Interest pursuant to statute. 4. $1,125.00 in costs pursuant to the Magistrates’ Court Scale of Costs 5. Any further recovery costs incurred in excess of the scale costs under the Magistrates’ Court Scale of Costs pursuant to section 143(1)(c) of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 [8] Section 4 of the Magistrates Court Act 1921 provides: 4 Jurisdiction of Magistrates Courts Subject to this Act— (a) every personal action in which the amount claimed is not more than the prescribed limit, whether on a balance of account or after an admitted set off or otherwise; and (b) every action brought to recover a sum of not more than the prescribed limit, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will; and -- 2 of 8 -- 3 (c) every action in which a person has an equitable claim or demand against another person in respect of which the only relief sought is the recovery of a sum of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the prescribed limit; may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions. [9] It is therefore an essential part of pleading a matter before this court of limited jurisdiction to establish that the relief sought is within its limits. [10] Items 2 and 5 of the Claim clearly do not comply with this rule 22 which reads: 22 Claim (1) A claim must be in the approved form. (2) A plaintiff must— (a) state briefly in the claim the nature of the claim made or relief sought in the proceeding; and (b) attach a statement of claim to the claim; and (c) for a claim filed in the District Court or a Magistrates Court, show the court has jurisdiction to decide the claim. [11] The pleadings are made up of both the Claim and the Statement of Claim. The issue of whether relief in the SOC which is broader than the Claim is available was considered by Justice Peter Lyons in 7-Eleven Stores Pty Ltd v United Petroleum Pty Ltd & Anor (No 2) [2011] QSC 267 (citations omitted): [39] It is doubtful that, where the relief claimed in the statement of claim is wider than that claimed in the claim itself, the former is of no effect. [12] His Honour also considered rr.156 and 658. While the Court may grant general relief, even if it is not pleaded, that relief must be justified by the pleaded facts. [13] Rule 149(1) reads “(1) Each pleading must— (e) if a claim or defence under an Act is relied on—identify the specific provision under the Act.” Item 3 fails to comply with this rule. [14] Rule 149 provides: 149 Statements in pleadings (1) Each pleading must— (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and … -- 3 of 8 -- 4 [15] It follows that any prayer for relief for ‘future contributions’ or ‘further recovery costs’ cannot comply with this fundamental obligation of pleading because the material facts have not happened. [16] Rule 159(3) reads : (3) The party must allege in the party’s pleading particulars of— (a) the amount or amounts on which the interest is claimed; and (b) the interest rate or rates claimed; and (c) the day or days from which interest is claimed; and (d) the method of calculation. (4) However, the rate or rates of interest need not be separately specified if the party is claiming at the rate or rates specified in a practice direction. [17] Item 3 fails to comply with this rule. [18] Items 2 and 4 also contemplate that the Court can automatically include matters for which no cause of action has yet arisen be included in a pleading. [19] Rule 158 provides “(1) If a party claims damages including money the party has paid or is liable to pay, the pleading must contain particulars of the payment or liability.” [20] Items 2 and 4 also fail to comply with this rule. Of course they cannot as these potential causes of action had not arisen at the time of drafting. This simply goes to illustrate what should be obvious – a plaintiff cannot sue on, plead and recover for a debt that hasn’t happened until it happens and they plead it in accordance with the UCPR. The Statement of Claim [21] Paragraph 1 identifies the parties and their right to sue or be sued. The remainder appears as if it is likely to be a template with reliance on particulars provided in a schedule. The schedule attached is simply a photocopy of a BC statement from the applicant/defendant’s lot account. [22] The claim is based on a statutory cause of action which creates various debts in section 143 of the Building Units and Group Titles Act 1980 . It reads : (1) If a contribution or contribution instalment is not paid by the date for payment, the body corporate may recover each of the following amounts as a debt— (a) the amount of the contribution or instalment; (b) any penalty for not paying the contribution or instalment; (c) any costs (recovery costs) reasonably incurred by the body corporate in recovering the amount. [23] The cause of action is thus based on proving that ‘a contribution or contribution instalment is not paid by the date for payment.’ [24] How contributions are fixed is covered in section 139. This reads: -- 4 of 8 -- 5 (1) The body corporate must, by ordinary resolution— (a) fix, on the basis of its budgets for a financial year, the contributions to be levied on the owner of each lot for the financial year; and (b) decide the number of instalments in which the contributions are to be paid; and (c) fix the date on or before which payment of each instalment is required. [25] How contributions are notified is covered in section 140. This reads: (1) At least 30 days before the payment of a contribution, or instalment of a contribution, is required, the body corporate must give the owner of each lot written notice of— (a) the total amount of the contribution levied on the owner; and (b) the amount of the contribution, or instalment of contribution, whose payment is currently required; and (c) the date (the date for payment) on or before which the contribution, or instalment of contribution, must be paid; and (d) any discount to which the owner is entitled for payment of the contribution, or instalment of contribution, by the date for payment; and (e) any penalty to which the owner is liable for each month payment is in arrears; and (f) if the owner is in arrears in payment of a contribution or penalty—the arrears. [26] The material facts pleaded are: 2. Pursuant to Section 139(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2008, the Plaintiff, by ordinary resolution, fixed the contributions for the Administrative Fund to be levied for the financial years (sic – the word ‘relevant’ seems to be missing) on the lot owners in the Scheme in accordance with their lot liability, decided the number instalments in which the contributions are to be paid and fixed the date on or before which payment of each instalment is required. [27] The attached schedule does not set out the date of any resolution, the lot liability of the applicant’s lot, the number of instalments, the period covered by any instalments or the date fixed. [28] Instead it has columns marked Date, Type, Details, Reference, Debit, Credit and Balance. [29] The material facts have not been pleaded nor have adequate particulars given to enable the defendant to know the case she is to meet. The reader is not told what the ‘Date’ is. Perhaps it is the due date but perhaps it is the date of the invoice or the date the matter was entered on the register? -- 5 of 8 -- 6 [30] For the November 2018 entries for the Sinking and Admin funds, two dates are provided. These are from 1/12/18 to 31/05/19. The reader is not told what these are or how many instalments were decided upon. [31] Nowhere on the statement does the lot liability appear. Nowhere in the statement is the date that the notice was given set out. [32] Minds might differ about whether these items are themselves material facts or particulars of the material facts. If they were pleaded it would serve two important functions which the UCPR is designed to achieve. 1. It would unequivocally enable the defendant to know what levy was payable on what date and for what 2. It would require them to make a specific pleading in respect of it or risk deemed admission and so help achieve the aims of r.5. [33] Fully and properly pleaded, a BC claim for s.143 levies properly imposed would be difficult to set up a defence to. One possibility is an error in the matters required under s.139 and 140.1 It is not infrequently that person sued for BC fees raise that they cannot understand where the amounts come from or how they are now so high. The UCPR should prevent this. [34] All the Statement of Claim does is annex a copy of the accounts of the BC. It only attempts to incorporate that into the pleading with the following recitation: As at 2 April 2019, the Defendant was indebted to the Plaintiff pursuant to the Scheme in the amount of $8,879.21 in accordance with the ledger being Annexure A to the Statement of Claim. [35] That balance is about 50% due to the first two line entries. There is one shown as 12/09/18 Admin Fund Jnl – Balance at takeover - $1802.39. The other is 12/09/18 Sinking Fund Jnl Balance at takeover $1899.82. [36] This is in no way a pleading that these sums were ever levied. Nothing in the pleading purports to explain what this ‘takeover’ is or of what or why these sums appear on the statement. They clearly do not support the pleaded claim for ‘the amount of any contribution or instalment’. Interest [37] Judgment was claimed for $8,879.21 in the Claim. The Attachment shows this includes ‘Arrears Notice Fees’ and something called ‘Arrears Admin-Owner’. These clearly do not support a claim under 143(1)(a) or (c). They are a mystery to the reader. [38] That amount is listed in the Claim (above) as ‘unpaid contributions levied’. Clearly they are not unpaid levies. [39] Nor are the several line items appearing for ‘Interest’. [40] The notice under r.150(3) of the Statement of Claim lists $1.34 for interest. It makes no effort to show how that is calculated by giving for example the principal, period and rate in accordance with r.159. -- 6 of 8 -- 7 The Request for Default Judgment [41] The application for default judgment sought judgment in the amount of $8879.21 plus interest under the Civil Proceedings Act 2011. [42] It seeks the larger sum ‘as a debt or liquidated demand with interest’. [43] It mentions each of rules 283 to 287 inclusive and 289 in the footer. Clearly it is only under r.283. The underlining is mine. 283 Judgment by default—debt or liquidated demand (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 of judgment, at the rate specified in the claim or in a practice direction for the Civil Proceedings Act 2011, section 58; and (b) the following costs— (i) costs for issuing the claim; (ii) costs for obtaining judgment; (iii) any other fees and payments, to the extent they have been reasonably incurred and paid. (3) If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment. [44] The citation of all possible rules including the appropriate rules for recovery of possession of land2 and costs only.3 It gives the appearance of a pro-forma used without regard to actual rule applicable or the actual facts and laws applicable to the case. [45] The actual rule applicable as set out above shows that default judgment can only be given for the amount claimed. At that point there was no pleading even seeking more that the $8879.21 and interest. It follows that the judgment for the larger sum was irregularly entered. The Affidavit in support and Request [46] The affidavit provided came from a paralegal from the respondent/plaintiff’s solicitor’s office. She swore what might be expect to get default judgment on a properly pleaded claim. [47] Included with that material where allegations of fact that two further contributions were levied. Only the date, fund and amount were given. 2 Rule 286 3 Rule 289 -- 7 of 8 -- 8 [48] The affidavit then sought judgment on the amount claimed ‘plus contributions accrued since proceedings commenced’. [49] The balance was thus said to be $14,334.49 and judgment was sought for that sum in the affidavit plus some interest and costs giving a grand total of $16,118.16. That figure included all the recovery costs as correctly set out in the affidavit. The Draft Order [50] The draft judgment provided by the applicant’s solicitor did not contain that sum. It provided for judgment as follows: THE JUDGMENT OF THE COURT IS THAT the Defendant/s (sic) Dianne Therese Bennett pay to the Plaintiff the amount of $16,134.88 including interest of $93.80 to today and $7161.87 costs. [51] There is nothing on the material to indicate how an affidavit seeking $16,118.16 (which included interest to the date of the request) provides any basis for getting judgment for $16,134.88. [52] There is nothing on the material that enables me to establish how the $7161.87 figure found its way into the judgment as costs. It appears to be the extra levies and costs. [53] That plus the original claim amount add up to $16,041.08 which is close to the two figure mentioned so far. [54] None of this changes that judgment can only be given for the actual amount not some close approximation of it. [55] Nor should anyone be left scratching their heads as to why what appears to be an addition claim for a separate cause of action gets entered by the court as ‘costs’. Irregular Judgment. [56] It follows that the whole of the judgment is irregularly entered and ought be set aside under r.290. A.H. Sinclair Magistrate -- 8 of 8 --