Express Finance Solutions Pty Ltd v Richards

[2011] QDC 192

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2345 of 2010

EXPRESS FINANCE SOLUTIONS PTY LTD	Plaintiff
and
EARL NORMAN RICHARDS	Defendant
and
SANDRA ROSE RICHARDS	Defendant

BRISBANE

..DATE 12/08/2011

..DAY 1

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 105, r 106, r 290

Default judgement set aside "ex debito justitiae" - defendants swear they were never served and had sold and vacated relevant premises where claim and statement of claim were left by the time of the alleged service (by a person now deceased)
HIS HONOUR: The court makes an order in terms of the initialled draft under rule 290 and sets aside default judgment entered in the Registry on the plaintiff's second attempt in that regard on the 12th of November 2010.

There are affidavits of the two defendants swearing that service never occurred of the claim and statement of claim. These complaints are corroborated by the fact asserted in the affidavits, assuming it to be one, that they had sold the relevant premises and vacated them some time before it's asserted that service occurred by leaving of the documents at the premises.

The plaintiff is in some difficulties because its principal, Mr Grant, who claimed to have effected service, has recently died. For what it's worth, he appears to have been a bankrupt who ought not to have been participating in commerce through the plaintiff as occurred. The plaintiff doesn't appear today when called although served with the application.

The judgment should be set aside ex debito justitiae. It's interesting to note that on the 21st of September 2010 when default judgment was refused the Registrar noted "The two defendants (if they were in the house) were behind closed doors. The claim and statement of claim were not served in accordance with rules 104 to 106 (i.e the documents were not handed to each defendant personally nor were the documents put down in the presence of each defendant with the defendant being told what the documents were)." It's not entirely clear how the circumstances had changed by the day when judgment was entered by a different Deputy Registrar.

Order as per initialled draft.

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CaseChat Overview and Summary

Express Finance Solutions Pty Ltd initiated proceedings against Earl Norman Richards and Sandra Rose Richards in the District Court of Queensland. The plaintiff sought to recover a debt, and after the defendants failed to respond to the proceedings, default judgment was entered in their absence. The defendants subsequently applied to set aside the default judgment, asserting they were never served with the claim and statement of claim and had vacated the premises where the documents were allegedly left prior to the time of the claimed service.

The legal issues before the court involved whether the defendants were properly served with the claim and statement of claim, and if the court had jurisdiction to enter default judgment in their absence. The court needed to determine whether the default judgment should be set aside based on the defendants' sworn statements and the procedural irregularities in the service of the documents. Additionally, the court had to consider the implications of the deceased individual who claimed to have served the documents and the potential misconduct of the plaintiff's principal.

The court found that the defendants had provided affidavits swearing that they were never served with the claim and statement of claim, and they had vacated the premises before the alleged service date. The court also noted that the plaintiff's principal, who claimed to have served the documents, had died and appeared to have been a bankrupt, which raised questions about the legitimacy of the plaintiff's actions. The court concluded that the default judgment should be set aside as it was entered without proper service, and the judgment was therefore invalid. The court set aside the default judgment ex debito justitiae, recognising the importance of ensuring proper service of process in legal proceedings.

The court ordered that the default judgment entered on 12 November 2010 be set aside in accordance with the initialled draft under rule 290 of the Uniform Civil Procedure Rules. The plaintiff was not present at the hearing despite being served with the application. This case highlights the importance of adhering to procedural rules and the consequences of failing to properly serve documents in legal proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established