Deputy Commissioner Of Taxation - Elizabeth Street v Statham [2015] QDC 129

DISTRICT COURT OF QUEENSLAND CITATION: Deputy Commissioner Of Taxation – Elizabeth Street v Statham [2015] QDC 129 PARTIES: DEPUTY COMMISSIONER OF TAXATION – ELIZABETH STREET (respondent/plaintiff) v DENISE MARY STATHAM (applicant/defendant) FILE NO/S: 4657/13 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 13 May 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 13 May 2015 JUDGE: Samios DCJ ORDER: THE ORDER OF THE COURT IS THAT: 1. Pursuant to Rule 290 of the Uniform Civil Procedure Rules 1999 the default judgment awarded on 20 January 2015 be set aside. 2. The Respondent pay the costs of the Applicant of the application on the standard basis. CATCHWORDS: PRACTICE – ACTION – SETTING ASIDE JUDGMENT – DEFAULT JUDGMENT – where the applicant/defendant applies to set aside a default judgment entered into against the applicant/defendant – where the applicant/defendant did not appear at the original hearing – where the default judgment was entered into against the applicant/defendant irregularly – whether the default judgment should be set aside Legislation Uniform Civil Procedure Rules 1999 (Qld) r 290 Cases Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 -- 1 of 4 -- 2 Reid v Jensen [2002] QDC 247 Standen Operations Pty Ltd v The Black Dog Café (Holdings) Pty Ltd & Ors [2008] QDC 225 Troiani & Anor v Alfost Properties Pty Ltd [2002] QCA 281 COUNSEL: Mr A Stanton (solicitor) for the applicant/defendant No appearance for the respondent/plaintiff SOLICITORS: Creevey Russell Lawyers for the applicant/defendant No appearance for the respondent/plaintiff [1] HIS HONOUR: Yes. This is an application to set aside a default judgment granted on 20 January 2015. The defendant became aware that judgment had been entered against her when a bankruptcy notice was served on her on 12 February 2015. She soon thereafter engaged lawyers because she was of the belief that everything was under control up until that point in time. The application is on the grounds that the default judgment was entered irregularly against her. Rule 290 provides that: 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. [2] It has been observed that the discretion is unfettered, see Standen Operations Proprietary Limited v The Black Dog Café (Holdings) Proprietary Limited and others [2008] QDC 225 per Judge Robertson. He quoted Judge Wilson SC’s decision in Reid v Jensen [2002] QDC 247 where it was noted the court will consider primarily: (a) whether or not the defendant has given a satisfactory explanation for their failure to appear; (b) whether or not there has been any delay in making the application; and (c) whether or not the defendant has a prima facie defence on the merits to the claim on which the judgment is founded. -- 2 of 4 -- 3 [3] The submissions of Mr Stanton, who appears today on behalf of the applicant, also refers me to Troiani v Alfost Properties Pty Ltd [2002] QCA 281 where his Honour went on to indicate that the delay in bringing an application of this nature is of much less significance. [4] On the evidence before me the defendant has explained the non-appearance. She was under the belief that her dealings with the plaintiff were under control, that is, she believed her accountant was looking after her interests, unfortunately, obviously by inference, that was not so. [5] Regarding the merits, her evidence shows that when it was claimed by the plaintiff that money was owing, in fact, she had paid more than what was claimed by the plaintiff during the relevant period, therefore the debt is in its entirety validly and clearly disputed. The defendant has moved quickly. There will be no prejudice to the plaintiff by my setting aside the judgment. As has been held by his Honour Judge McGill, in Hill v Robertson Suspension Systems [2009] QDC 165, where the judgment is for a sum which the plaintiff knew or ought to have known was not owing, is irregular. [6] I accept the submission that in this case the plaintiff, at the very least, ought to have known the amount claimed in the judgment was not wholly due and owing and as a result the judgment is irregular and should be set aside. Therefore, I make an order setting aside the default judgment and I also order the respondent to pay the costs of the applicant of the application on the standard basis. So there will be an order as per the draft initialled by me and left with the papers. Mr Stanton. -- 3 of 4 -- 4 [7] MR STANTON: Thank you, your Honour. [8] HIS HONOUR: Yes. I’ll just give that – I’ll just show you what I’ve done. Mr Bailiff will just show you what I’ve done. I don’t need extra copies of your order. They can just be handed back to you as well. Just give these spare copies back to Mr Stanton. Yes. No need to wait, Mr Stanton. [9] MR STANTON: Thank you, your Honour. [10] HIS HONOUR: Thank you. -- 4 of 4 --