Perpetual Nominees Limited v Heaton

[2010] QDC 528

[2010] QDC 528

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2533 of 2010

PERPETUAL NOMINEES LIMITED ACN 000 733 700	Plaintiff
and
VICTORIA KATHERINE HEATON	Defendant

BRISBANE

..DATE 02/12/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 105, r 112, r 283, r 284, r 375, r 377, r 382, r 385

Plaintiff obtains leave to amend claim for "debt" and the statement of claim to seek "liquidated damages" - concern that absent such amendment (and appropriate for this personal service) default judgement against the defendant could not properly be granted.

HIS HONOUR:  The court makes an order in terms of the initialled draft under the order pursuant to rules 375 and 377.  The plaintiff is granted leave to amend its claim and statement of claim to accord with a form presented as an exhibit to an affidavit.  Pursuant to rule 385(2) the defendant is ordered to file a defence within eight days of being personally served with the amended claim and statement of claim.  In the circumstances, there's no order for costs. 

The plaintiff's legal representatives have reflected upon the appropriateness of the existing claim and statement of claim which have been personally served without attracting a notice of intention to defend.  This places the plaintiff in the position of being able to seek default judgment.

Concern has arisen that the claim is inappropriate in seeking "the sum of $168,940.97 as a debt due and owing pursuant to the terms of the lease" and interest under clause 8.3 of the lease.  The concern is that if default judgment is sought, the view may be taken that the procedure is irregular because the claim is, properly, one for liquidated damages, which would make judgment by default under rule 284 appropriate as opposed to judgment by default under rule 283.

The solicitors are correct to be concerned. In a matter earlier in this week's list - Rollone Pty Ltd -v- Byrne, 2567 of 2010, 30th of November 2010 - the plaintiff failed to persuade the registrar to enter judgment on the basis of rule 284, the registry being of the view, on perusal of the documents filed in the court, that the claim was really one for a debt or liquidated demand, such that the plaintiff there ought to have amended its proceeding. See [2010] QDC 517.

The authorities which were considered in Rollone indicate that Ms Angove is correct in her characterisation of the plaintiff's claim as predominantly for unliquidated damages.  If default judgment is to be pursued and problems avoided, it seems appropriate to amend the proceeding now.

Given that a new cause of action is proposed, it's necessary for the plaintiff to effect service of its present application on the defendant and it will have to serve the amended claim and statement of claim.  The present application is not originating process, of which rule 105 would require personal service.  What's required under rule 112 is ordinary service.

An affidavit establishes that that was effected by use of a courier service to send the application and supporting material to the defendant, whose whereabouts are known.  As it happens, the courier did hand the documents to the defendant in person, so that personal service may have been effected. 

The order, picking up rule 385(2), allows eight days for the defendant, after appropriate service of the amended proceedings, to defend or "plead".  There's an assumption in the rule that a notice of intention to defend has been filed.

The future will tell whether the registry require notice of intention to defend if a defence is presented for filing.  The future may tell whether the procedure now settled on by the plaintiff is efficacious from the point of view of obtaining an early judgment. 

It might be noted that the factual situation relied on by the plaintiff is the abandonment of a lease of retail premises by the defendant lessee early in the term.  Essentially what's sued for is the rent which the plaintiff lessor loses.  There are other parts of the claim for items such as "marketing levy".

As indicated, I agree with Ms Angove's characterisation of the claim as for the most part, one for damages.  Order as per initialled draft.

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