Body Corporate for Sunseeker Apartments CTS 618 v Jasen (No 2) [2009] QDC 163

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate for Sunseeker Apartments CTS 618 v Jasen (No 2) [2009] QDC 163 PARTIES: CAROL DIANE JASEN (Applicant) v BODY CORPORATE FOR SUNSEEKER APARTMENTS CTS 618 (Respondent) FILE NO/S: D 322/08 PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 18 June 2009 DELIVERED AT: Southport HEARING DATES: 12 May 2009 JUDGE: Newton DCJ ORDER: Application dismissed. Applicant to pay respondent’s costs on indemnity basis. LEGISLATION: Body Corporate and Community Management Act 1997 Uniform Civil Procedure Rules 1999 rule 476. CASES: Surfer’s Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited [1984] 2 Qd. R. 447 CATCHWORDS: PRACTICE – ACTION – SETTING ASIDE JUDGMENT – UNIFORM CIVIL PROCEDURE RULES 1999 – rule 476 (1) - If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs – rule 476(4) - The court may set aside or vary any judgment or order obtained because of sub rule (1) on terms the court considers appropriate – whether any merits demonstrated by applicant. COUNSEL: Applicant in person. Ms S.M. McNeil for the respondent. SOLICITORS: Applicant in person. Short Punch & Greatorix for the respondent. -- 1 of 7 -- 2 [1] The Body Corporate for Sunseeker Apartments in Port Douglas (“Sunseeker”) claims from Carol Diane Jasen in an action for debt, unpaid levies, interest and recovery fees. At the commencement of the trial on 5 February 2009 there was no appearance by or on behalf of Ms Jasen. The Registrar of the District Court at Southport had received a facsimile from Ms Jasen indicating that she had placed the matter with a “Queensland law firm” for legal representation.1 A medical certificate was also faxed to the Registrar on 5 February 2009.2 [2] At the commencement of the second day of the hearing (6 February 2009) there was again no appearance by or on behalf of Ms Jasen. No notice of change of solicitor was filed by the time the hearing concluded at 12:20pm on Friday 6 February 2009. [3] Counsel for the plaintiff (Ms McNeil) informed me that no further communication from Ms Jasen had been received since the facsimile prior to 10am on 5 February 2009 by her instructing solicitors, Short Punch and Greatorix. 3 [4] The history of this matter is somewhat lengthy and disjointed. The plaintiff issued proceedings in September 2003. There has been a number of amendments to the pleadings. At the time of trial the proceedings were based upon the sixth amended statement of claim. The defendant had filed a fourth amended defence in the matter and there was a reply to that fourth amended defence. [5] The plaintiff’s claim is in respect of body corporate levies that have remained unpaid for 1 April 1999 to 4 August 2008. The matter was transferred from the Mossman Magistrates Court to the Southport District Court in 2008 because the monetary level of the claim had exceeded the jurisdiction of the Magistrates Court. 1 The facsimile from Ms Jasen was in the form of a letter addressed to the plaintiff’s solicitors Short Punch and Greatorix with a copy to the Southport District Court. The document as relevant stated as follows: “Thankyou for your recent correspondence redirected from London, UK and received today. I have forwarded all material related to this dispute to a Queensland law firm who will be representing me, as I am not able to continue representing myself due to ill-health and associated hospital treatment. Please find following confirmation from my London GP. An Australian medical certificate can also be provided if required.” The Queensland law firm will file a notice of change of solicitor in the Southport District Court.” 2 The medical certificate is dated 22 December 2008 and states: “this is to state that this patient needs further rest for increasing pain and weakness of both hands which makes it difficult to do her job of computer work. It is likely she [has] carpel tunnel syndrome. She will be in Australia for the month of January.” 3 Trial transcript p8 L41 -- 2 of 7 -- 3 [6] The claim and statement of claim were filed on 6 October 2003. On 24 November 2003 the plaintiff filed an application for substituted service due to difficulties locating the defendant. On 9 December 2003 an order was made in the Mossman Magistrates Court permitting service on the defendant by mail addressed to PO Box 162 Parkville, Victoria 3052, in lieu of personal service. [7] On 8 January 2004 Ms Jasen filed a notice of intention to defend and a defence. [8] On 3 February 2004 an amended statement of claim was filed. On 17 February 2004 a further amended statement of claim was filed and on 27 February 2004 an amended claim was filed. On 19 April 2004 a third amended statement of claim was filed. On 19 May 2004 an amended defence and counter claim of the defendant was filed. On 27 May 2004 a fourth amended statement of claim was filed. On 17 June 2004 a reply and answer to the defendant’s amended defence was filed. On 19 July 2004 notice of appointment of solicitor was filed by the defendant.4 On 27 July 20004 a fifth amended statement of claim was filed. On 7 December 2004 a further amended defence and amended counter claim was filed. On 19 April 2006 a third amended defence was filed and the counter claim of the defendant at that date was withdrawn. On 4 August 2008 a sixth amended statement of claim was filed (that being the current pleading for the plaintiff) and of 5 September 2008 the defendant filed a fourth amended defence. [9] On 10 June 2008 an application was made to uplift the proceedings to the District Court and for further substituted service. On 14 July 2008 Judge Brabazon QC ordered that the matter be uplifted to the District Court and also made an order for substituted service. 5 On 5 September 2008 Ms Jasen filed an application in respect 4 The notice of appointment of solicitor filed by the defendant on 19 July 2004 appointed Morrow Petersen, Solicitors to act on her behalf in the proceedings. Mr Michael Laycock was nominated as the solicitor having carriage of the defendant’s matter. 5 Pursuant to the order of Judge Brabazon QC service upon the defendant was to be affected in the following manner: a) Delivering sealed copies of the originating process, together with any and all further documentation, including this Order of the Court, by doing both of the following: i. Posting any documents to the [Defendant] at Care of Post Restante, Earl’s Court Post Office, Cnr Earl’s Court Road and Earl’s Court Gardens, Earl’s Court, London SW5 England, UK; and ii. Posting any documents by ordinary post to Mrs Monica Stievano, care of Ray White Real Estate, Port Douglas at 366 Port Douglas Road, Port Douglas, QLD 4877, with a request that such documents be brought forthwith to the [Defendant’s] attention. b) Service on the [Defendant] is deemed to be effected seven (7) days after posting of the documents in accordance with the above subparagraph (a). -- 3 of 7 -- 4 of the substituted service order made by Judge Brabazon QC and the proceedings in general. On 10 November 2008 she failed to attend her application and Judge Kingham dismissed the application and ordered Ms Jasen to pay the plaintiff’s costs. [10] Throughout the history of this matter Ms Jasen’s legal representation has changed a number of times. She has during some periods been self represented and during other periods she has been represented by various solicitors. At the beginning of the matter Ms Jasen was self represented. Between 19 December 2003 and 13 April 2004 she was represented by Morrow Peterson Solicitors. From 13 April 2004 to 16 July 2004 she was self represented. From 16 July 2004 to 23 March 2005 she was represented by Morrow Peterson Solicitors’ again. Between 23 March 2005 and 20 September 2005 Ms Jasen was self represented. Between 20 September 2005 and 16 April 2008 Ms Jasen was represented by Herd Law. On 16 April 2008 Herd Law sought leave to withdraw as solicitors on the record and that leave was granted. Since 16 April 2008 to 5 February 2009 the defendant appears to have been self represented, although there has been no notification given to the Registry of the Court or to the plaintiff. [11] In relation to more recent conduct of the matter on 14 July 2008 during an application heard by Judge Brabazon QC various pieces of correspondence were identified that had been sent to the Registry by the defendant. In that correspondence Ms Jasen referred to having Nyst lawyers acting on her behalf. Judge Brabazon QC requested the plaintiff’s solicitors to telephone Nyst Lawyers. During such phone call Mr Webb of Short Punch & Greatorix (the plaintiff’s solicitors) was advised that Nyst Lawyers were aware of the defendant and the proceedings but had no formal instructions and no current instructions. [12] From 14 July 2008 until 5 February 2009 there was no indication from Ms Jasen that she, indeed, had any legal representation. [13] The plaintiff complains of difficulties in locating Ms Jasen at various times and points to a number of applications for substituted service to locate the defendant. The plaintiff also complains of extensive and continual applications for extensions of time sought by the defendant throughout the history of this matter. -- 4 of 7 -- 5 [14] In deciding to proceed with the plaintiff’s case in the absence of Ms Jasen when she failed to appear on 5 February 2009 I accepted that the medical certificate referred to in paragraph 1 made no suggestion that Ms Jasen would be so incapacitated as to be unable to appear and sit in a witness box and give evidence. I also accepted that the certificate made no mention of Ms Jasen being unfit to undertake travel from the UK to Australia within reasonable time to provide instructions to enable her legal representatives to conduct a trial on her behalf. [15] Rule 476 of the Uniform Civil Procedure Rules 1999 provides as follows: “476 (1) If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs. (2) If the plaintiff does not appear when the trial starts, the defendant is entitled to dismissal of the plaintiff’s claim and the defendant may call evidence necessary to establish an entitlement to judgement under a counterclaim against the plaintiff, in the way the court directs. (3) Despite sub rule (2), the defendant may submit to judgment if the plaintiff does not appear when the trial starts. (4) The court may set aside or vary any judgment or order obtained because of sub rule (1) on terms the court considers appropriate.” [16] Ms Jasen’s application to appear and defend the plaintiff’s claim notwithstanding her failure to appear on 5 and 6 February 2009 is made under sub rule (4). In Surfer’s Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited6 Andrews SPJ noted that “the first thing required of an applicant to set aside a judgment by default I would think is to demonstrate merits. In Watt v Barnett (1878) 3 Q.B.D. 363 where substituted service on a defendant had been ordered that the defendant claimed to have had no notice of the proceedings and applied to be let in to defend on the ground that he had a defence on the merits. It was held that as the order for substituted service had been properly made and service effected under it the judgement was regular; that the defendant could not therefore, ex debito justitiae, claim to be let in to defend; but that the Court in the exercise of its 6 [1984] 2 Qd. R. 447 at 454 -- 5 of 7 -- 6 direction could allow him to do so if it were shown that he had no knowledge of the proceedings and had a defence on the merits. The Court there held that the giving of security in a sum equal to the sum claimed to be owing was appropriate.” [17] Ms Jasen submits that she has some prospects of defending all or part of the claim and that her defence has merit. In particular, she submits that the plaintiff has sought to recover from her unlawful costs that relate to the payment of a letting agent for remuneration. Ms Jasen submits that levy notices unlawfully include a claim for levies for amounts paid by the body corporate to a letting agent from funds universally levied on all unit holders. [18] I am satisfied, however, that there are two separate agreements with the company that owns the management and caretaking rights of the scheme and the letting rights. In relation to the letting agreement no levies are issued by the body corporate. The company (Latitude 16 Pty Ltd) has separate agreements with seven of the ten lot owners in relation to letting those lots. The levy notices issued on Ms Jasen contain no component in relation to letting agent’s fees. Furthermore, the AGM minutes of the body corporate contain several budgets, none of which for the relevant period between 1997 and 2008 contain any reference to letting agent fees. Evidence given to the court at the hearing on 5 and 6 February 2009 from both a director of Latitude 16 and the manager of the body corporate clearly established that the body corporate does not include, in administrative and sinking fund levies, any amount relating to letting agent fees. In fact, the Body Corporate and Community Management Act 1997 requires that there be a written agreement in relation to the letting rights for the scheme. 7 [19] In this regard, then, Ms Jasen’s concerns demonstrate a fundamental misunderstanding of the case brought against her by the body corporate. It is difficult to see that her defence to the claim based upon such misunderstanding has any prospect of success were Ms Jasen at this late stage be permitted to have the evidence reopened. It would be a complete waste of time and do nothing other than 7 See, in this regard, document 22 in exhibit 1 in the hearing of 5 and 6 February 2009. -- 6 of 7 -- 7 to incur additional costs to permit Ms Jasen to agitate the question of letting agent’s fees being included in levy notices issued to her. [20] Accordingly, I am of the view that her application to have the trial reopened should be dismissed. Ms Jasen is to pay the costs of this application to the respondent plaintiff on an indemnity basis. -- 7 of 7 --