Bernmist Pty Ltd v Peretz [2006] QSC 218

State Reporting Bureau j^eo6j osc Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ REVISED COPIES ISSUED State Reporting Bureau Date: 3 August, 2006 No 26 of 2006 BERNMIST PTY LTD ACN 068 858 720 Respondent/Plaintiff (as trustee for the John and Robina Samios Business Trust) and YEHUDA PERETZ Applicant/Defendant CAIRNS . .DATE 01/08/2006 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 3 -- .01082006 D.1 T13/LVT M/T CNS2/2006 (de Jersey CJ) THE CHIEF JUSTICE: I intend to set aside this default 1 judgment. In terms of a defence, the relationship between the parties does not emerge clearly from the conjunction of the so-called joint venture agreement and loan agreement. I appreciate the significance of features such as the opening 10 words of clause 5.1 of the joint venture agreement, but then why would the word "contribute" have been used in the second line of clause 3.2 if the loan agreement was to operate in accordance strictly with its terms? It may be that the joint venture agreement did effect an alteration to the repayment 2 date for the amounts being put forward by Mr Samios. In any event, in the end I think the position is so unclear that the matter warrants a trial. That is a strong consideration in favour of vacating the judgment. 30 As to the other discretionary features, the applicant has not satisfactorily explained why he allowed the judgment to be entered. He was warned that the entry of judgment was imminent, he was told when it was entered, yet he did not lodge a defence. He has no adequate explanation for that. 40 But I do not think in the end that that warrants my now refusing this application. As to the remaining discretionary consideration, that is the delay in bringing this application, there is some explanation 50 for that in the lack of cooperation on the part of the respondent's solicitors in providing him with certain documentation . 2 JUDGMENT 60 -- 2 of 3 -- 01082006 D .1 T13/LVT M/T CNS2/2006 (de Jersey CJ) THE CHIEF JUSTICE: But it is a case where, plainly, the applicant must pay the respondent's costs and I consider that they should be paid as a condition, in effect, of the setting aside of the default judgment. I say that because I get the impression from the material that the respondent may have difficulty in securing payment of these costs and I do not want the respondent to be humbugged by dilatoriness on the part of the applicant. The orders I make, therefore, will be: 1. That the defendant pay the plaintiff's costs of entering the default judgment, to be assessed on the indemnity basis; 2. That the defendant pay the plaintiff's costs of and incidental to the application to set aside that judgment, including reserved costs, to be assessed on the standard basis; and 3. That upon the defendant's paying to the plaintiff the amount of those costs, the default judgment be set aside . I direct that any assessment of costs pursuant to these orders be expedited. 3 JUDGMENT -- 3 of 3 --