Business National Pty Ltd v Matherson and Matherson [2013] QDC 4

DISTRICT COURT OF QUEENSLAND CITATION: Business National Pty Ltd v Matherson and Matherson [2013] QDC 4 PARTIES: BUSINESS NATIONAL PTY LTD (Plaintiff) AND DESMOND PATRICK MATHERSON (First Defendant) AND RUTH MARION MATHERSON (Second Defendant) FILE NO/S: 2819/2012 PROCEEDING: Application DELIVERED ON: 15 January 2013 DELIVERED AT: Brisbane JUDGE: Samios DCJ ORDER: 1. Order that the judgment by default of 29 October 2012 and all enforcement of it be set aside. 2. Defendants have leave to file and serve a notice of intention to defend and a defence within 28 days. 3. The application of stay enforcement of the judgment be dismissed. Plaintiff ought to pay the defendants’ costs of and incidental to the application to set aside default judgment on the indemnity basis. 4. The application to stay enforcement of the judgment be dismissed with no order as to costs. COUNSEL: AK Ehlers appeared for the Applicant/Defendant. Ms Jones appeared for the Respondent/Plaintiff. SOLICITORS: Just us Lawyers for the Applicant/ Defendant. JHK Legal for the Respondent/ Plaintiff. -- 1 of 3 -- [1] The plaintiff issued proceedings against the defendants on the 17th of July 2012. The relief sought orders that the plaintiff be granted possession of two properties. The claim also sought judgment for money due and owing under a loan agreement. The claim and statement of claim were not served personally upon the defendants who executed the loan agreements and are the owners of the two properties. [2] The evidence before me shows that the solicitors for the plaintiff have forwarded the claim and statement of claim by email to a solicitor who was acting for the defendants. The solicitor for the plaintiff sought from this solicitor, on the 11th of September 2012, something in writing acknowledging receipt of the claim and statement of claim. [3] The solicitor's response, though, was to say that he acknowledged receipt of the service of the documents and apologised for not replying earlier and that he had forwarded the documents to his client by email. He said, "I shall advise when I have further instructions". I am satisfied on the evidence that the defendants did not receive the documents. Further, that the solicitor was not authorised to accept service. [4] The plaintiff's solicitors did not have regard, it appears to me, to sub rule (2) of rule 115 of the Uniform Civil Procedure Rules. That requires the solicitor to make a note on a copy of the document to the effect that the solicitor accept service for the party. Unfortunately, the plaintiff relied on this state of evidence to support an application for default judgment before the Registry. [5] Default judgment was granted by the Registry on the 29th of October 2012. The plaintiff then sought to enforce the judgment. The evidence indicates that the defendants have been seeking to resolve their financial circumstances to be able to meet the plaintiff's claims. Of course, the convenience of the defendants is not relevant if there is a debt due and owing to the plaintiff. [6] It is not to the point that the defendants might be able to resolve their financial circumstances if given five months, as claimed, if there is a debt due and owing -- 2 of 3 -- by them to the plaintiff. Notwithstanding the apparent acceptance by the defendants of a liability to the plaintiff, the fact remains, service, in my opinion, of the claim and statement of claim upon the defendants was not regular. [7] Service, in my opinion, was not in accordance with the rules. That is, the judgment that's been entered has been irregularly entered and must be set aside. Therefore, in relation to the application to set aside the default judgment, I order that the judgment by default of 29 October 2012 and all enforcement of it be set aside. I also give the defendants leave to file and serve a notice of intention to defend and a defence within 28 days of today. [8] In relation to that other application to stay enforcement of the judgment, it becomes unnecessary. I order that application be dismissed. In relation to costs, I consider that the plaintiff ought to pay the defendants' costs of and incidental to the application to set aside the default judgment. [9] That is because the plaintiff presented the irregular evidence to the Registrar and moved to have judgment by default. The plaintiff obtained that judgment by default and then sought to enforce it. As it was an irregularly entered judgment and the plaintiff was the mover in relation to it and has opposed the application to set it aside, I order that those costs that I order the plaintiff to pay the defendants of and incidental to the application to set aside the default judgment be on the indemnity basis. [10] In relation to the application to stay the enforcement of the judgment, as I said, that has become unnecessary. I therefore order, in relation to that, there be no order as to costs. -- 3 of 3 --