Commonwealth Bank of Australia v Powell [2013] QDC 89

1-1 [2013] QDC 89 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1631 of 2012 COMMONWEALTH BANK OF AUSTRALIA Applicant and CLAYTON BRUCE POWELL AND KYLIE MARIE POWELL Defendants BRISBANE ..DATE 30/01/2013 ORDER CATCHWORDS Uniform Civil Procedure Rules- r290 – default judgment set aside on application of the plaintiff which had obtained it, inconsistently with an agreement with the defendant not to enter judgment if they complied with certain undertakings (as was occurring) -- 1 of 3 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: I will proceed to deal with the matter of Commonwealth Bank of Australia v Clayton Bruce Powell and Kylie Marie Powell (1631 of 2012). This is an application by the plaintiff bank which the applicant proposes be decided without an oral hearing under rule 489. The application is for the setting aside of a judgment by default entered under rule 290. That judgment was entered on the 7th of December 2012 by the registry and is for an amount of $157,161.82. Costs apparently are costs on top of that. The judgment was obtained by solicitors acting for the plaintiff bank and apparently regularly. The outline of submissions filed with the present application on the 24th of January 2013, pursuant to rule 490, indicates and this is supported by an affidavit of Ms Durcau, a solicitor employed by the firm - that the plaintiff instructed the lawyers to file a request for default judgment against the defendant on the 5th of December 2012. The solicitors acted with expedition, obtaining a judgment and advising the defendants of it on the same day namely, 7th of December 2012. On the 11th of December 2012 the plaintiff advised the lawyers that it had entered into an arrangement with the defendants that it would not enter judgment if certain conditions were met. To date, the court is told, the defendants have complied with the arrangement. Accordingly, the plaintiff has -- 2 of 3 -- 1-3 ORDER 1 10 20 30 40 50 60 instructed the lawyers to have the judgment set aside. It's unusual indeed to have an application under rule 290 made by the plaintiff which, quite deliberately it seems, sought and obtained the judgment. Nonetheless, unless there is some good reason why the plaintiff should not take advantage of rule 290, proper dealing would require that the application succeed. I can think of no reason why rule 290 should be read down to place any difficulty in the way of the plaintiff proceeding as it now wishes to. Accordingly, there will be an order in terms of the initialled draft which the plaintiff has provided. The only confusing aspect is that that draft document refers to the setting aside of a default judgment entered on the 31st of May 2012. One hopes that use is not being made of some precedent, the only default judgment in sight would appear to be the one of 7th of December 2012. I have taken the liberty of amending the draft order to reflect that by inserting what I apprehend to be the correct date. ----- -- 3 of 3 --