BMW Australia Finance Ltd v McGuire & Anor [1992] QSC 252

\e11_:s \(". c-- .• ( TRANSCRIPT OF PROCEEDINGS State R~rting BW"e4u, 4th Floor, The Law Courts, George Street. BR1SBA.NE. 0. 4000 Tel. (07) 227.4360 (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 RYAN J No 661 of 1992 BMW AUSTRALIA FINANCE LIMITED Plaintiff and KEVIN ANDREW MCGUIRE First Defendant and· ROBERT PORTEN Second Defendant BRISBANE . . DATE 6 I 7 I 9 2 .. JUDGMENT 1 -- 1 of 4 -- 060792 JUDGMENT HIS HONOUR: An application has been made for an order that the Registrar sign final judgment for the plaintiff against the first and second defendants in the amount specified in the writ pursuant to 0 15 r 3. The application is made pursuant to 0 87 r 28. By the writ which is specially endorsed the plaintiff claims against e.ach of the defendants:. .. (a) the sum of $185,873.33; (b) interest purs~ant to contract at a daily rate of $80.76 from 23 April 1992. The writ was issued on 5 May 1992. Service was effected on the first defendant on 18 May 1992, and on secondftefendant on 12 May 1992. No appearance has been entered by the defendants. Order 15 r 3 provides where a writ of summons is endorsed for a debt or liquidator demand only, whether by special endorsement or otherwise, and the defendant failed to appear thereto, the plaintiff may enter final judgment against the defendant. for .any sum not exceeding the sum endorsed on the writ, together with interest at·the .rate claimed by the endorsement as the rate agreed upon. In. the statement of claim endorsed on the writ, the rate agreed upon is stated to be 16 'per cent, which equates to a daily rate of $80.76. 2 10 n20 ol 30 40 0 50 60 -- 2 of 4 -- ·' ( \1 I I "-~j 060792 The statement of claim endorsed on the writ alleges in para 13 that as a consequence of matters therein set out, the defendants are jointly and severally indebted to the plaintiff as at 23 April 1992 in the sum of $185,873.33, together with interest in accordance with the luxury lease agreements 10 calculated at a daily rate in the sum of $80.76 per day from 23 April 1992. In para 14 it is alleged, "Further or in the alternative, wrongfully and in breach of the guarantees, the defendants have neglected and refused and continued to neglect and refuse to repay to the plaintiff each and all of the moneys due to the plaintiff under the terms of the guarantees, in consequence on which the 20 plaintiff has suffered loss and damage." Particulars are given of the loss and damage as· consisting of: (a) $184,742.67, being principal outstanding as at 9 April 1992; (b) $1,134.64 interest outstanding as of 23 April 1992; (c) loss of use of the said sums from 23 April 1992 to judgment. It appears that the opinion of the Deputy Registrar was that the alternative claim took the claim outside of 0 15 r 3. The submission made before me on behalf of the applicant was that no claim was made in respect of the alternative claim. I am unable to accept that this is so. The claim is for a~ sum of $185,873.33, but it is to the particulars given in the statement of claim that recourse must be had to find whether- the writ is endorsed for a debt or liquidated demand only, just as it is those particulars which disclose the rate of the 3 30 40 50 60 -- 3 of 4 -- 060792 interest agreed upon. The further or alternative claim is one for damages for loss suffered by the plaintiff as a result of breach of contract. The writ of summons is therefore not endorsed for a debt or 10 liquidator demand only and accordingly 0 15 r 3 is inapplicable. The Deputy Registrar was correct in so deciding. In my view, however, this case falls within 0 15 r 7. The n20 claim endorsed on the writ is for unliquidated damages and also for a debt or liquidat~d demand. I agree with the statement of Master Weld in Custom Lease Pty Ltd v. Pryce 0 (1988) 2 QdR 4886 at p 488, that it is not necessary that the judgment be entered for both the claim for unliquidated 30 damages and for the debt or liquidated demand. Final judgment . ' I may accordingly be entered in respect of the claim 'for a debt. or ·liquidated demand as is provided for by 0 15 r 3. In this particular case where the amount claimed ~s exactly the amount of the liquidated demand together with interest, I consider there is no impediment t:o entering· judgment under 0 15 r 3 in the amount claimed, though the further or alternative claim has not been abandoned. Accordingly, I order that the Deputy Registrar, upon being satisfied as to the conditions for entry of judgment, enter judgme~t, notwithstanding the matters on which he dec·lined- to do so. 4 0 40 0 50 60 -- 4 of 4 --