D v G [2003] QSC 106

SUPREME COURT OF QUEENSLAND CITATION: D v G [2003] QSC 106 PARTIES: D (plaintiff) v G (defendant) FILE NO: s9944 of 1996 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 2 May 2003 DELIVERED AT: Brisbane HEARING DATE: 29 April 2003 JUDGE: Wilson J ORDER: The judgment ought to be set aside on terms which will secure the plaintiff’s interest in the property pending trial. Counsel to agree on the precise terms of the order. CATCHWORDS: PROCEDURE – DEFAULT JUDGMENT – SETTING ASIDE – where defendant denies any knowledge of judgment entered in 1999 until 2003 – where material in support of the application does not include a draft defence – where there is an affidavit raising disputes of fact that can only be resolved at trial – where defendant’s solicitors lost contact with him – where plaintiff also delayed and had to give a notice of intention to proceed – where defendant acted promptly upon learning of the judgment. Taylor v Taylor (1979) 143 CLR 1, applied WR Carpenter Australia Ltd v Ogle [1999] 2 Qd R 327, applied COUNSEL: M W Jarrett for the Applicant N B McGregor for the Respondent SOLICITORS: Saunders Downing Hely for the Respondent Price & Roobottom for the Applicant [1] WILSON J: This is an application pursuant to r 290 of the UCPR to set aside a default judgment. -- 1 of 4 -- 2 [2] The plaintiff and the defendant are former de facto partners. [3] The proceeding was commenced by writ issued on 22 November 1996. The defendant entered an appearance on 19 December 1996. The statement of claim was delivered on 5 November 1997. The plaintiff sought a declaration that the defendant held the property at 5 Magnolia Avenue, Hollywell described as lot 230 RP 96642 County of Ward Parish of Barrow on a constructive trust for the plaintiff and the defendant in equal shares. [4] On 9 November 1998 the plaintiff delivered a notice of intention to proceed. On 27 August 1999 she filed an application for judgment, and on 9 September 1999 White J made the following orders – “1. A declaration that the Defendant holds the property described as Lot RP96642, County Ward, Parish of Barrow, Title Reference 13573133 [“the property”] on trust for the Plaintiff and Defendant in equal shares. 2. The Defendant execute and deliver to the solicitors for the Plaintiff a transfer in registerable form of the property from the Plaintiff to the Plaintiff and Defendant as tenants in common in equal shares within 14 days of the service of this order. 3. In the event that the Defendant fails to comply with the order in paragraph 2 above, the Registrar be empowered to execute the transfer on behalf of the Defendant. Any default by the Defendant shall be established by the filing of an affidavit by the plaintiff’s solicitor deposing as to service of this order and the failure of the Defendant to execute the transfer referred to in paragraph 2 of this order within 14 days of the service of this order. 4. A declaration that the Defendant holds the assets (including goodwill) of the business known as “N D and Y M G... Plastering Contracts” [“the business”] on trust for the Plaintiff and Defendant in equal shares. 5. The Defendant be restrained from encumbering or further encumbering the property and business or from disposing of either the property or business without the written consent of the Plaintiff. 6. An account and enquiry be taken and made by the Registrar of the earnings of the business from January 1992. 7. The Defendant pay the Plaintiff’s costs of and incidental to this action to be taxed.” -- 2 of 4 -- 3 [5] On 13 October 1999 the defendant’s solicitors filed an application for leave to withdraw from the record. Muir J made an order giving them leave on 29 October 1999. [6] The present application to set aside the judgment was filed on 7 March 2003. [7] According to the defendant’s solicitors they sent letters to him at 5 Magnolia Avenue, Hollywell in February, March, April, September and November 1998 seeking instructions, but received no response. He says the last communication he received from them was an account in February 1998 which he paid the next month. There is no evidence that the letters were returned unclaimed. [8] The defendant is a plasterer by occupation. He says that since 1998 his employment has required him to travel to other cities and towns for work, often for weeks or months at a time. He says that over that period he would have spent no more than three months of every calendar year at the Hollywell property. Between 1998 and 2000 a friend of his, Rachel Lawrence, boarded in the house at Hollywell. She collected his mail and regularly telephoned him to advise him of mail received. She told him of the account received in February 1998, but not of any other mail received in relation to the proceeding. The defendant was not cross-examined on this evidence. There was no evidence from Ms Lawrence. [9] On 13 September 1999 the defendant’s solicitors wrote to him at the Hollywell property enclosing copies of the order of White J and of a letter from the plaintiff’s then solicitors, and advised of their intention to apply for leave to withdraw. As with the earlier correspondence, the defendant denies receipt of the letter; it was not returned unclaimed; and there is no evidence from Ms Lawrence. [10] Registration of the plaintiff’s interest in the property was not effected until August 2002. According to the plaintiff she encountered 12 months’ delay by her former solicitors which caused her to engage a different firm. On 20 February 2001 her new solicitors wrote to the defendant enclosing the transfer documents for execution and return. Failing to receive a response, they took steps to have them executed by the Registrar of the Supreme Court. It was also necessary to obtain the mortgagee’s consent to the transfer. The process was a protracted and costly one. The plaintiff had to pay approximately $1700 to the mortgagee and approximately $2000 in stamp duty. She estimated that she incurred $20,000 legal costs - although such costs have not been billed or paid. [11] In September 2002 the Gold Coast City Council was notified of the change of ownership. It amended its rates notices accordingly, backdating the change to the date of White J’s order. The defendant says that it was only when he received a rates notice dated 13 January 2003 in the joint names of the plaintiff and him that he was alerted to what had occurred. He denies any knowledge of the judgment before inquiries consequent on the receipt of that rates notice. [12] The material in support of the application does not include a draft defence. However, there is a quite lengthy affidavit by the defendant raising substantial disputes of fact about his relationship with the plaintiff, and in particular deposing that there was no pooling of domestic finances or intention to do so. Such disputes can be resolved only at a trial. -- 3 of 4 -- 4 [13] When the judgment was obtained the defendant’s solicitors were still on the record as acting on his behalf. However, they had lost contact with him. That contact seems to have been lost after the delivery of the statement of claim. Delay on the part of the plaintiff in prosecuting the proceeding - so much so that she had to give a notice of intention to proceed in November 1998 - tempers criticism of the defendant for failing to keep in touch with his solicitors. The Court’s power to set aside default judgments extends to cases of judgments regularly obtained in the absence of a party where that absence is due to no fault on his part: Taylor v Taylor (1979) 143 CLR 1; WR Carpenter Australia Limited v Ogle [1999] 2 Qd R 327. Once the defendant learnt of the judgment, he acted promptly in applying to have it set aside. [14] In all the circumstances the judgment ought to be set aside but only on terms which will secure the plaintiff’s interest in the property pending trial. The defendant’s counsel submitted that that might be achieved by his client consenting to a caveat over the title. I consider that that ought to be made a condition of the order setting aside the judgment. Further the defendant ought to pay the plaintiff’s costs of obtaining judgment and of this application to be assessed on the standard basis. [15] I will ask counsel to try to agree on the precise terms of the order. -- 4 of 4 --