Ezy Homes Investments Pty Ltd v Bugg [2010] QDC 273

DISTRICT COURT OF QUEENSLAND CITATION: Ezy Homes Investments Pty Ltd v Bugg [2010] QDC 273 PARTIES: EZY HOMES INVESTMENTS PTY LTD (Respondent) v SHANNON BUGG (Applicant) DIVISION: Civil PROCEEDING: Application to set aside default judgment FILE: D127/2009 ORIGINATING COURT: Beenleigh District Court DELIVERED ON: 18 May 2010 DELIVERED AT: Beenleigh HEARING DATE: 18 May 2010 JUDGE: Dearden DCJ ORDER: The default judgment in the amount of $182,125.98, entered in favour of the plaintiff on 18 January 2010, in claim number D127/09; and the enforcement warrant made by the Deputy Registrar on 16 February 2010, in claim number D127/09 be set aside pursuant to rule 290 of the Uniform Civil Procedure Rules 1999. Costs reserved. CATCHWORDS: APPLICATION – PRACTICE AND PROCEDURE – STATEMENT OF CLAIM – application to set aside default judgment – where respondent failed to disclose a cause of action – where Uniform Civil Procedure Rules are not complied with – where the Statement of Claim is vague. LEGISLATION: Uniform Civil Procedure Rules 1999 (Qld) CASES: Hughes v Justin [1894] 1 QB 667 Alliance Acceptance Co. Ltd v Makas [1976] 26 FLR 451 Daly v Silley [1960] VR 353. COUNSEL: J. Fenton for the applicant. Respondent self represented. SOLICITORS: A W Bale and Son for the applicant. Respondent self represented. -- 1 of 6 -- 2 HIS HONOUR: This is an application to set aside default judgment in the amount of $182,125.98, entered in favour of the plaintiff, Ezy Homes Investments Pty Ltd in this Court on 18 January 2010, in respect of claim number D127/2009, and further, to set aside the enforcement warrant made by the Deputy Registrar of this Court on 16 February 2010 in respect of the same claim number. The grounds of the application are that judgment was not regularly entered because the claim and statement of claim did not disclose a cause of action, and are otherwise vague and embarrassing. I accept the submission made on behalf of the applicant/defendant, Mr Bugg, that, "If the judgment is irregularly, then the defendant is entitled to set aside the judgment as of right, regardless of a defence on the merits." Hughes v. Justin [1894] 1 QB 667; Alliance Acceptance Co. Ltd v. Makas [1976] 26 FLR 451; Daly v. Silley [1960] VR 353. It is clear that in respect of both the default judgment and the enforcement warrant, there has not been strict compliance with the Rules, and I note that Mr Bridgeford accepts that there are no submissions which he was able to make on behalf of the plaintiff company which could deal with the obvious and inescapable failures and errors in the statement of claim. The entering of judgment by default is, of course, a significant power on the part of the Court, and where that judgment has been irregularly entered because of difficulties such as, in this case, with a statement of claim that doesn't -- 2 of 6 -- 3 disclose a cause of action, then it is entirely appropriate for the Court to set aside that irregular judgment. The particular pleading issues identified on behalf of the defendant/applicant are the following: 1. There is no allegation anywhere in the statement of claim that identifies or concerns the applicant/defendant (so much is conceded by Mr Bridgeford for the plaintiff). The relevant paragraph of the statement of claim (paragraph 1) states, "A loan between Ezy Investments Pty Ltd was entered into on 1 June 2008 at Beenleigh." I note, firstly, that the handwritten words "at Beenleigh" have been written on the statement of claim, although not initialled, but in any event, what is clearly missing from that paragraph and is not otherwise pleaded, in any terms whatsoever, in the statement of claim, is that there was a loan with the defendant, Shannon Bugg. In addition, the following deficits have been identified (correctly, in my view) by the applicant/defendant, namely:- (a) The statement of claim fails to contain a statement of all the material facts relied on, for example, how, when and where a loan was entered into, and what its terms and conditions were (Uniform Civil Procedure Rules (UCPR) r.150(1)(a)); (b) The statement of claim fails to state, specifically, the -- 3 of 6 -- 4 relief sought (UCPR r.149(1)(d)); (c) The statement of claim fails to provide particulars to define the issues at trial (UCPR r.157(a)); (d) The statement of claim is so vague that it could not be pleaded to in response (UCPR r.157(d)); (e) The statement of claim fails to plead any breach of contract (UCPR r.150(1)); (f) The statement of claim fails to plead particulars of a debt or other liquidated demand (UCPR r.150(3)(a)). In addition, it is submitted (and I accept) that the statement of claim is vague, ambiguous or embarrassing. There is no application, at this stage, to have the statement of claim struck out, but in my view, there are directions that can be made today that will enable that issue to be progressed in a way that will reduce the necessary returns to this Court, but will enable this matter to proceed. The applicant/defendant does raise further issues in respect of the apparent breaches of the anti loan-sharking provisions of the Consumer Credit Code. Those, it seems to me, are matters for another day, and are not matters which, at this stage, need to be addressed in respect of my decision. -- 4 of 6 -- 5 I accept that there has been some significant delay in making this application to set aside default judgment, and the explanation on behalf of the defendant is, at best, rather lukewarm, but that being said, there is clearly a complete failure to comply with the relevant provisions of the Uniform Civil Procedure Rules in respect of the pleading of the statement of claim, and in those circumstances, even though there has been a significant delay, there is no bar, it seems to me, to the plaintiff re-pleading the matter in due course, compliant with the relevant provisions of the UCPRs, and the relevant statutory and precedent framework in which those re-pleadings must be done. In all of the circumstances, I form the strong conclusion that there has been a complete failure to plead the matter as required, and accordingly, I consider there is no alternative but to set aside both the default judgment and the enforcement warrant. I order as follows: (a) The default judgment in the amount of $182,125.98, entered in favour of the plaintiff on 18 January 2010, in claim number D127/09; and (b) The enforcement warrant made by the Deputy Registrar on 16 February 2010, in claim number D127/09 be set aside pursuant to rule 290 of the Uniform Civil Procedure Rules 1999. -- 5 of 6 -- 6 … HIS HONOUR: In respect of costs, costs are reserved. … HIS HONOUR: I'll grant leave to the plaintiff to file and serve an amended claim and statement of claim on or before the 8th of June 2010. ----- -- 6 of 6 --