Colonial Mutual Life Assurance Society Ltd v Kontos [1991] QSC 151

IN THE SUPREME COURT OF QUEENSLAND No. 471 of 1991 BETWEEN: THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED Plaintiff RICHARD ANTHONY STEPHEN KONTOS Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Third day of June, 1991 This is an application to set aside judgment which I pronounced on 9th May, 1991 pursuant to an application by the plaintiff to summary judgment under 0.18 r.1. The application was mentioned at the callover and it was indicated to me that it would be a contested application. When the matter was reached in the list Mr. Abaza, a Brisbane solicitor, indicated that he had no instructions and sought my leave to withdraw. As it appeared that the solicitor had in no way complied with the requirements of 0.14 r.3B, I refuse such leave and hence Mr. Abaza remained, did not read any material and effectively took no part in the application. Having read the material read and filed by the plaintiff I gave leave to sign final judgment. An affidavit by David Walter Rowell, solicitor for the plaintiff, has been read and filed before me today. It deposes to the fact that on 23rd May, 1991 judgment no. 2489 was entered in this Court and that on 27th May, 1991 a writ for possession, being writ no. W51 /91 was sworn out of the Court. -- 1 of 3 -- 2 Mr. Sherwood for appears for the present applicant has drawn my attention to O. 18 r. 1 0B. This rule, which was comparatively recently inserted to overcome the general proposition that once a judgment has been entered the Court pronouncing the judgment is functus officio, provides that where a judgment has been given against a defendant who does not appear at the hearing of an application, that judgment may be set aside or varied by the Court. Mr. Sherwood submits that in this case the defendant who personally did not appear at the hearing before me was but nominally represented by the solicitor in the light of the facts of which I have personal recollection and which I have referred to earlier, namely my refusal of leave to withdraw. The question then arises does the law and this rule in particular admit to the situation where a defendant albeit nominally on the record represented by a solicitor, but one who plays no active role in the argument and submits no material, come within 0.18 r.10B. It is well settled that once a judgment or order is formally passed under 0.88 r.12 it may as a general rule not be set aside or amended except on appeal. Marinov (1971) 125 CLR 529. See Bailey v. A different state of affairs may well prevail before judgment is passed and entered. There are various specific exceptions to the general rule and these include situations such as 0.18 r.10B and judgment in default of appearance (0.15 r.10). Each of these operates as a departure from the general -- 2 of 3 -- 3 law that a judgment regularly entered may not without specific authority be set aside. I have come to the clear conclusion that unfortunately I have no jurisdiction here as the facts are such as to not give rise to the operation of 0.18 r.10, notwithstanding that the solicitor then on the record for Mr. Kontos played no role in the argument. This appears to be in these circumstances regrettable in the light of the fact that Mr. Abaza did apply for leave to withdraw which leave I refused. However in my view whatever relief is open to the defendant it is relief not under 0.18 r.10 and accordingly the application is refused. The applicant defendant pay the respondent plaintiff's costs of and incidental to the application to be taxed. -- 3 of 3 --