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[2002] QCA 281
Court of Appeal (Qld)
2002-08-02
Alfost Properties P, Pherson JA, White J, Wilson J
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
COURT OF APPEAL
McPHERSON JA
WHITE J
WILSON J
Appeal No 9560 of 2001
SANTE TROIANIFirst Appellant
and
RITA CESARINA TROIANISecond Appellant
and
ALFOST PROPERTIES PTY LTD (CAN 010 560 639)Respondent
BRISBANE
DATE 02/08/2002
JUDGMENT
McPHERSON JA: This is an appeal by defendants in an action in the District Court from a decision refusing to set aside a judgment entered on 9 June 2000 in default of the defendants filing notice of intention to defend the claim.
The claim was based on a written agreement of 30 April 1996 for the loan of a sum of $230,000 but the claim in the action itself was limited to interest totalling $99,475.02, which by the time judgment was entered on 9 June 2000 had increased to $100,617.52. It was not suggested that the judgment was not regularly obtained and the application to set it aside rested on the defendants' assertion that they had a defence on merits.
Their principal defence is that there was another agreement between the parties by which the defendants' obligation to pay principal and interest under the loan agreement was varied so as to be discharged if the defendants arranged for Wide Bay Brickworks Pty Ltd to provide discounted bricks and paving stock to ABC Brick Sales. By way of explanation, Wide Bay Brickworks Pty Ltd was a company of which the first defendant was then a director, and ABC Brick Sales was the business name of a company Thandwalla Holdings Pty Ltd of which a Mr Ivan Parker was a director. That company, in turn, owned 25 per cent of the issued share capital of the plaintiff, which is now the respondent to this appeal.
In material filed by the plaintiff in opposition to the application to set aside the judgment it is deposed on behalf of the plaintiff that there was no such agreement for variation or discharge of the loan, as alleged by the defendant. It was also deposed that a weighbridge document purporting to record consignments of bricks from the brick work yard of Wide Bay Brickworks Pty Ltd did not, as the defendants asserted it did, bear the handwriting of a Mr Taylor, the yard manager of Wide Bay Brickworks.
Confronted with this conflict of evidence the learned Judge, in my opinion correctly, concluded that the matter was one that could not be resolved on the affidavit evidence in the application before him. In the result he found that the applicant/defendants had succeeded in showing a defence on the merits. His Honour then turned to the question of delay in making the application to set aside the judgment, considered with the explanation advanced by the defendants for their failure to appear and defend.
In substance the defendants asserted that the delay between the date on which they were served with the claim, on 30 March 2000, and the date on which the application to set aside the judgment was filed, was partly due to the failure of the plaintiff to provide them with a copy of the loan agreement and partly to the fault of their own former solicitor in failing to follow their instructions or to advise them of communications he had received from the plaintiff or its solicitors.
On 22 June 2001 they instructed another firm to act on their behalf. His Honour's conclusion on this aspect of the matter was that,
"There was a satisfactory explanation of the failure to file a notice of intention to defend."
That left for consideration the defendants' failure to explain the delay between 22 June and the filing of the application to set aside the judgment. In his reasons his Honour said that the application was filed on 6 September 2001. In fact, that date, 6 September 2001, was the hearing date for which the application was originally set down and not its filing date which, according to the record, was 2 August 2001. It is not clear whether the interval of a month or so between those two dates resulted from deliberate choice on the part of the defendants, or was due to the exigencies of the Court calendar in Bundaberg or elsewhere and to his Honour's other judicial commitments at the time.
Given, however, the fact that the period between 22 June 2001 when the defendants first instructed their present solicitors, and 2 August 2001 when the application was filed is little more than five weeks, I would not have considered that the delay in question was sufficient to justify dismissal of their application on that ground alone.
On behalf of the respondent/plaintiff on appeal, Mr Anderson of counsel submitted that there must be an error in, or in the transcription of, his Honour's reasons, and that when, in the passage quoted above, he said, "there is a satisfactory explanation" of the failure to file a notice of intention to defend, his Honour must have said or meant to say, "there is no satisfactory explanation". The context, to my mind, tends to suggest that this may be the case but the record is prima facie evidence of the proceedings: compare Savanoff v. Recar Pty Ltd [1983] 2 QdR 219, 230. Without any firm indication to the contrary, I am not prepared to assume that there has been a clerical error in the reasons, as has been suggested.
In order, however, to avoid any suggestion that the appeal is being determined in that respect on what may be a defective version of the reasons, I consider that this Court should reconsider that aspect of the application afresh. Accepting, as I do, that there is a defence on the merits, or that one has been shown for the purpose of letting the defendants in to defend, the question is whether decisive weight should be attached to the defendants' explanation, or the absence of it, for the delay in failing to file their application before 2 August 2001.
In my view, the delay from 22 June 2001 until that date is sufficiently explained by the fact that it was only on the first of those dates that they engaged new solicitors. Some time would then have been occupied in instructing them and in preparing the defendant's affidavits.
Troiani & Anor
Alfost Properties P/L [2002] QCA 281