Allen & Anor v Dungey [2015] QDC 167

DISTRICT COURT OF QUEENSLAND CITATION: Allen & Anor v Dungey [2015] QDC 167 PARTIES: GLEN LEROY ALLEN and MARGARET ELIZABETH ALLEN (plaintiffs) v SUNDAY DUNGEY (defendant) FILE NO/S: 49/13 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Bundaberg DELIVERED ON: 18 June 2015 ex tempore DELIVERED AT: Bundaberg HEARING DATE: 18 June 2015 JUDGE: Smith DCJA ORDER: 1. The default judgment is set aside. 2. The defendant is to pay the plaintiffs’ costs of and incidental to the application fixed in the sum of $1500. CATCHWORDS: PRACTICE AND PROCEDURE – APPLICATION TO SET ASIDE DEFAULT JUDGMENT – whether irregularly entered- whether conditions should be imposed Civil Proceedings Act 2011 (Q) s 59 Uniform Civil Procedure Rules 1999 (Q) rr 150, 284, 285, 290 Alexander v Ajax Insurance Company Limited [1956] VLR 436 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 337 Browning v ANZ Banking Group Limited [2014] QCA 43 Coshott v Sakic (1998) 44 NSWLR 667 Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313 Green v Tri-Barfen Pty Ltd [2006] QDC 160 -- 1 of 7 -- 2 Heydon v Perpetual Executors Trustees and Agency Company WA Limited (1930) 45 CLR 111 Nelson v Nelson (1995) 184 CLR 538 Shevill v Builders Licensing Board (1982) 149 CLR 620 Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 Watson’s Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 COUNSEL: Solicitors for the plaintiffs Ms A. Nicholas for the defendant SOLICITORS: Bedford and associates for the plaintiffs RNG Lawyers for the defendant [1] This is an application by the Defendant to set aside a judgment entered against her on the 9 January 2014 in the sum of $146,525.87, together with $158.37 interest and $1782.50 in costs. The application is pursuant to rule 290. [2] The claim and statement of claim were filed on the 29 October 2013. The statement of claim alleges that, in or about April or May 2006, the Plaintiffs agreed with the Defendant that they would provide money to a CommSec account so the Defendant could purchase shares on condition the dividends would be paid to the Plaintiff. Further, on their death, the shares would become the property of the Defendant. It is to be noted the Defendant was the daughter of the Plaintiffs. I note one of the Plaintiffs is now deceased. It was agreed the Plaintiffs would have internet access to the CommSec account. [3] It is pleaded that the Plaintiffs provided a total of $104,677 to the Defendant for the purchase of the shares. In effect, it is alleged this agreement was breached because the Defendant failed to pay dividends on time. Further it is alleged that in or about October 2009, she ceased access to the Plaintiff to the CommSec account and she sold 4250 Westpac shares and purchased others without the knowledge of the Plaintiffs. [4] As a result, a dispute arose between them. In April 2010, this dispute was resolved. A statutory declaration was executed in which the Defendant agreed to pay dividends appropriate to 4250 Westpac shares tax-free for their lifetime. In addition, there was to be a cessation of alleged harassment and threats of legal action by the Plaintiffs, and she agreed to make no further claim on the estate of the Plaintiffs. I have my doubts as to the validity of such an agreement. It seems to me an agreement such as that to prevent threats of legal action might oust the jurisdiction of the Court, but that issue can be left to another day. It is alleged in the statement of claim that, since December 2012, she ceased to pay the dividends and an order was sought for the payment of $145,265, which was the value of those shares. [5] Fiona Morgan, in an affidavit sworn 18 November 2013, swears that she served the Defendant with the claim and statement of claim and a form 1 under the Service and Execution of Process Act 1992 (Cth). She alleges this was served at the Defendant’s -- 2 of 7 -- 3 address, 21 Albert Hill Road, Lilydale, Victoria, at 7.20 pm on the 14th of November 2013. I also note that she said she made three visits to effect that service. [6] Default judgment was requested by the Plaintiffs on 7th January 2014. A document was filed purporting to be a document proving the value of shares and the amount of dividends. After calculation, judgment was given in favour of the Plaintiffs by the Registrar on 9th January 2014 in default of appearance. I note that the request for default judgment alleged to the amount sought was a debt or liquidated demand – a point I will discuss shortly. [7] On 2 March 2015, an application was filed by the Defendant to set aside the judgment. In her first affidavit, she says she is the daughter of the Plaintiffs. She says they did advance her $100,000 for the purchase of Westpac shares in around April 2006. She alleges it was expressly agreed by the Plaintiffs that, when they sold their property in 2006, they would give her, as a gift, $100,000 to purchase the Westpac shares and, once purchased, they were gifted to her on condition she pay any dividend arising in respect of the Westpac shares. She alleges that she has always complied with the condition to pay the tax-free dividend to the Plaintiffs. [8] She denies she was served with the claim and statement of claim. She says that on the day of service she spent the day looking after her granddaughter at her daughter’s residence in Carlton and did not return to her residence until after 7.30 pm. She said that her usual practice at that stage was to leave her daughter’s residence at about 6.30 pm, and it would take one to two hours to return home. I note she does not deny that her address was, indeed, 21 Albert Hill Road, Lilydale. [9] The affidavit of Evangeline Aston Themm, her daughter, confirms that she would leave the house at about 6.30 pm after looking after the granddaughter. She also says that there was no reason for her mother not to be at the house at that time. [10] In a further affidavit sworn 12th June 2015, the Defendant swears that the default judgment was registered in the County Court in Melbourne in July 2014. She was arrested in connection with these proceedings by arrangement on 25 November 2015. She attended for an oral examination in the County Court in late 2014 and 17 February 2015. That examination has been stayed pending this application. [11] Exhibit SD1 is her proposed defence. She alleges the transfer of the $100,000 was a gift conditional on her purchase of shares and paying the Plaintiff’s dividends tax- free for their lifetime. She alleges she paid the dividends between June 2006 and December 2012. She alleges, in October 2009, the male Plaintiff asked for a return of the gift and she refused. She admits selling the shares. She says that, from 2010, she and her family received threatening and harassing communications (exhibit SD3). She signed the statutory declaration to resolve the dispute, but, despite this, there were intimidating messages between December 2012 and October 2014. [12] Now, rule 290 of the Uniform Civil Procedure Rules provides: “The Court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the Court considers appropriate.” [13] In order for a party to obtain judgment upon the default of the Defendant, there must be strict compliance with the rules (see Watson’s Specialised Tooling Proprietary Limited v Stevens [1991] 1 Qd R 85 at 91.20 per Lee J). It has been said that, where -- 3 of 7 -- 4 a judgment is irregularly entered, the Applicant will be entitled to have the judgment set aside. As I discuss later, though, this principal is not absolute, in my view, in light of rule 290. [14] The first question to be discussed is whether the judgment was regularly entered. The Defendant submits: (a) if a default judgement is obtained irregularly, the usual order will be to set aside (see Browning v ANZ Banking Group Limited [2014] QCA 43 at [29]); (b) where a default judgment is entered on the basis the claim was for a liquidated sum, whereas, in fact, it is for an unliquidated sum, the judgment will be set aside as irregular (see Alexander v Ajax Insurance Company Limited [1956] VLR 436); (c) in this case, the action is not one for a debt or liquidated demand. An action for debt or liquidated demand is very different to an action for breach of contract; (d) properly characterised, the claim is neither for a debt or liquidated demand. In those circumstances, the default judgment was irregularly entered and should be set aside; (e) further, the Court would be satisfied that service was not effected if there has been non-compliance with rule 150, sub-rule (3), in that the required statements specified in that rule were not in the pleading (see Green v Tri-Barfen Proprietary Limited [2006] QDC 160 at [5]-[6]); (f) the interest claim is defective. Although, I do not consider there is much in that point as I consider that could be severed from the judgment. [15] The Respondent submits: (a) the judgment is not irregularly entered; (b) it is submitted the judgment sum could be readily calculated by reference to Westpac prices (see Spain v The Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138); and (c) the evidence to be accepted is that the originating process was served. [16] The first point I will deal with is whether the proceedings were served. The Defendant gave oral evidence that she was not served with the proceedings. Her evidence is that her son would have been home on 14 November 2013, yet, he did not mention the visit of any process server to her. She agreed she received an options document from her husband, exhibit 1, in 2014 when Mr Allen visited, but, despite the context of that document, she claimed to have no knowledge of the judgment. Mr Allen, in his evidence, said that on 22 June 2014, he gave exhibits 1, 2 and 3 to the Defendant’s husband, including a duplicate copy of the default judgment. [17] I accept Mr Allen’s evidence and reject the evidence of the Defendant. I find she was aware of the judgment certainly as at 22 June 2014. The options document clearly refers to it. She also took the documents to a solicitor. She must have read the documents to get advice. If she did not know of the judgment until that point, surely she would have done something to have it set aside then. This tends to show she was well and truly aware of the judgment at that point. [18] Having rejected her evidence on this point, I also reject her evidence that she was not served on 14 November 2014. I find the documents were served as: -- 4 of 7 -- 5 (a) there was no reason for Ms Morgan to lie about this. There was no axe to grind between she and the Defendant. Ms Morgan went there three times; (b) the Defendant did live at the address where service was effected; (c) the proceedings were served at 7.20 pm. This is close to the point in time at which she would have arrived home if it took an hour. She says she would leave at 6.30 pm from Carlton to go to Lilydale. No doubt, that is an approximate time; (d) I preferred the evidence of Mr Allen over the Defendant and therefore do not accept her evidence. [19] I therefore find that service was effected in this case, so therefore reject the submission that the judgment was irregularly entered on that basis. Is the judgment otherwise irregular here? [20] I now turn to the point about the nature of the claim. The pleading does not make it clear what the action is for. One possibility is it may be thought the effect of the claim is that the Defendant repudiated essential obligations she owed under the agreement between she and the Plaintiffs and the repudiation was accepted by the Plaintiffs (see Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 337 and Shevill v Builders Licensing Board (1982) 149 CLR 620 at 627). The contract was terminated certainly by the issue of proceedings. [21] But regardless the claim appears to me at the least, and ultimately conceded by the Respondent, to be one for damages for breach of contract, although I note the concession was not as to the damages point. Such damages may well equal the repayment of loan moneys, but, as I say, this is not clearly pleaded. Another possibility here is the claim is for recoverable compensation. It could be argued that a resulting trust is to be presumed here (see paragraph 1210, Jacob’s Law of Trusts 4th edition). However, it may be that the presumption of advancement applies here (see Nelson v Nelson (1995) 184 CLR 538). Regardless, the onus is on the plaintiffs to prove their case (see Heydon v Perpetual Executors Trustees and Agency Company WA Limited (1930) 45 CLR 111 and Coshott v Sakic (1998) 44 NSWLR 667). [22] I also consider over and beyond this there was non-compliance with rule 150, sub-rule (3), for the reasons argued by Ms Nicholas. In the circumstances, it is my view that rule 283 did not apply here, but rule 284 did. This meant there should have been judgment conditional with an assessment of damages to occur. In those circumstances, it is my respectful view this judgment was irregularly entered. [23] Another question is whether I can amend the judgment to $104,677, the money advanced, together with interest, under section 59 of the Civil Proceedings Act 2011 (Q). In Cusack v De Angelis [2008] 1 Qd R 344; [2007] QCA 313, Muir JA held at [31] that rule 290 permitted the Court to amend an irregularly entered judgment. Ms Nicholas submits, in all of the circumstances here, I should not do so. She points out that there is a defence, exhibit SD1 to the affidavit. There is a defence on the merits here. The plaintiffs’ claim is attended by a number of difficulties, and the defendant denies the plaintiffs are entitled to any payment. I also note it is suggested, perhaps, this agreement may have been illegal, and that may be a matter of defence and/or claim to be examined after today’s proceedings. -- 5 of 7 -- 6 [24] The plaintiffs, on the other hand, submit there was a significant delay in the bringing of this application, the proposed defence lacks merit, and that they will be prejudiced in setting aside the judgment due to the male plaintiff’s ill health, although, as I noted in argument, there was no evidence placed before me from the male plaintiff proving his claim. [25] It may be, on the face of it, unusual the plaintiffs would simply give $100,000 to the defendant during their lifetime. Perhaps the social security issue explains that. It also seems unusual to me the defendant can now simply keep the money because of threats made, for example, because of legal proceedings. It also seems to go against the statutory declaration, which does not suggest the plaintiffs would simply give the money to the defendant. [26] On the other hand, it does seem to me, on the sworn material by the defendant, a triable issue is raised here. The terms of the agreement are in dispute, and there is a dispute on whether the terms were carried out. Another important fact to be thrown into the mix is that the statement of claim needs to be put in order. I consider it is not properly pleaded. If it had been, in light of the delay in bringing the application, the defendant’s application may well have been dismissed. [27] In all of the circumstances, because of the state of the pleading and the fact the judgment was irregularly entered, I have determined to set aside the judgment pursuant to rule 290 of the Uniform Civil Procedure Rules. In light of the state of the pleadings, whilst I did give consideration to the imposition of conditions, notwithstanding the fact it was an irregularly-entered judgment, I do not think it appropriate to do so, as there need to be significant amendments to the statement of claim to regularise this action. [28] For the reasons given my order is that the judgment is set aside, but I wish to provide a timetable to the parties to regularise these pleadings. I will hear the parties on the question of costs. ... [29] HIS HONOUR: On the question of costs, Ms Nicholas submits to me that her client should not have to pay any costs and the plaintiffs should pay her client’s costs because this was an irregularly entered judgment set aside and, in those circumstances, the costs should follow the event. On the other hand, the plaintiff submits that the defendant should pay the costs because of the delay. Whilst it is true costs ordinarily follow the event, on my findings the defendant has significantly delayed the bringing of this application. She was served with the statement of claim, as I have found, in November of 2013. She knew of the judgment on the 22 June 2014 and this application was not brought until after the oral examination was set down in Melbourne and stayed and then the application was brought on the 2 March 2015. [30] In my view, the justice of the situation is such that I will order that the defendant to pay 50 per cent of the plaintiff’s costs, bearing in mind that there is some degree of fault on their part in light of the nature of the pleading. …. -- 6 of 7 -- 7 [31] I order that Ms Dungey pay the plaintiff’s costs of and incidental to the application, fixed in the sum of $1500. -- 7 of 7 --