Default judgment set aside without costs

A recent District Court case is believed to be the first in Queensland in which UCPR r 5 has been used to support the setting aside of a regularly entered default judgment without a costs order.

Default judgment - whether irregular - whether court has residual discretion not to set aside default judgment irregularly entered

In CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd [2005] QDC 399 McGill DCJ examined whether the court now has a discretion to set aside an irregularly entered default judgment.

Setting aside default judgment - whether judgment regularly or irregularly entered - service under Corporations Act 2001 (Cth) s109X(1) - requirements for affadavit of service

In Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 McGill DCJ considered the procedural requirements for the service of originating process on a company, and for proving that service for the purpose of obtaining default judgment.The judge’s views adopt a strict and technical construction of the requirements for an affidavit of service under r 120(1)(b). Though clearly obiter, they may well affect the approach taken on applications to enter or set aside default judgments in the lower courts. Pending further judicial consideration of the issue, it is suggested the prudent course is to ensure that the deponent of an affidavit for service effected under s 109X(1)(a) of the Act deposes not only to the location of the registered office of the company but also, at a minimum, provides the source of that information.

Improper coaching of witnesses costs defendant its judgment

In its judgment on April 11, 2005, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110, the NSW Court of Appeal overturned the decision of the District Court in favour of the defendant. The main ground for the decision of the Court of Appeal related to the conduct of the defendant's solicitors and its witnesses prior to trial. The Court subsequently referred the matter to the Legal Services Commissioner.

Setting aside default judgment - whether applicant must file affidavit providing direct evidence of defence 'on the merits'

In Prus-Butwilowicz v Moxey [2002] QDC 166 the court examined the question whether an applicant for an order setting aside a default judgment was required to file an affidavit providing direct evidence of a defence 'on the merits' and whether the position had changed under the Uniform Civil Procedure Rules 1999 (Qld).

Corporations Act 2001 s 459G : application to set aside statutory demand

The application before the court in Millerview Constructions Pty Ltd v Palmer Plumbing Pty Ltd [2008] QSC 005 raised a significant question regarding the appropriate construction of s 459G of the Corporations Act 2001 (Cth) (the Act). The decision emphasises the importance of ensuring that any application to set aside a statutory demand must be served in a timely way on the creditor at the creditor’s address for service as stated in the statutory demand, or in strict compliance with another manner authorised by the Act.

Application to set aside statutory demand

In C & E Pty Ltd v Corrigan [2006] QCA 47, the Queensland Court of Appeal considered whether r103 of the Uniform Civil Procedure Rules applied to the service of an application to set aside a statutory demand under s459G of the Corporations Act 2001 (Cth). The decision provides analysis and clarification of an issue that has clearly been one of some uncertainty.

A primer for use of genetic tools in selecting and testing the suitability of set-aside sites protected from deep-sea seafloor massive sulfide mining activities

Seafloor massive sulfide (SMS) mining will likely occur at hydrothermal systems in the near future. Alongside their mineral wealth, SMS deposits also have considerable biological value. Active SMS deposits host endemic hydrothermal vent communities, whilst inactive deposits support communities of deep water corals and other suspension feeders. Mining activities are expected to remove all large organisms and suitable habitat in the immediate area, making vent endemic organisms particularly at risk from habitat loss and localised extinction. As part of environmental management strategies designed to mitigate the effects of mining, areas of seabed need to be protected to preserve biodiversity that is lost at the mine site and to preserve communities that support connectivity among populations of vent animals in the surrounding region. These "set-aside" areas need to be biologically similar to the mine site and be suitably connected, mostly by transport of larvae, to neighbouring sites to ensure exchange of genetic material among remaining populations. Establishing suitable set-asides can be a formidable task for environmental managers, however the application of genetic approaches can aid set-aside identification, suitability assessment and monitoring. There are many genetic tools available, including analysis of mitochondrial DNA (mtDNA) sequences (e.g. COI or other suitable mtDNA genes) and appropriate nuclear DNA markers (e.g. microsatellites, single nucleotide polymorphisms), environmental DNA (eDNA) techniques and microbial metagenomics. When used in concert with traditional biological survey techniques, these tools can help to identify species, assess the genetic connectivity among populations and assess the diversity of communities. How these techniques can be applied to set-aside decision making is discussed and recommendations are made for the genetic characteristics of set-aside sites. A checklist for environmental regulators forms a guide to aid decision making on the suitability of set-aside design and assessment using genetic tools. This non-technical primer document represents the views of participants in the VentBase 2014 workshop.

Management of plant communities on set-aside land and its effects on earthworm communities

Plant communities of set-aside agricultural land in a European project were managed in order to enhance plant succession towards weed-resistant, mid-successional grassland. Here, we ask if the management of a plant community affects the earthworm community. Field experiments were established in four countries, the Netherlands, Sweden, the UK, and the Czech Republic. High (15 plant species) and low diversity (four plant species) seed mixtures were sown as management practice, with natural colonization as control treatment in a randomized block design. The response of the earthworrns to the management was studied after three summers since establishment of the sites. Samples were also taken from plots with continued agricultural practices included in the experimental design and from a site with a late successional plant community representing the target plant community. The numbers and biomass of individuals were higher in the set-aside plots than in the agricultural treatment in two countries out of four. The numbers of individuals at one site (The Netherlands) was higher in the naturally colonized plots than in the sowing treatments, otherwise there were no differences between the treatments. Species diversity was lower in the agricultural plots in one country. The species composition had changed from the initial community of the agricultural field, but was still different from a late successional target community. The worm biomass was positively related to legume biomass in Sweden and to grass biomass in the UK. (C) 2005 Elsevier SAS. All rights reserved.

A new model construction by making a detour via intuitionistic theories I: Operational set theory without choice is Π1-equivalent to KP

We introduce a version of operational set theory, OST−, without a choice operation, which has a machinery for Δ0Δ0 separation based on truth functions and the separation operator, and a new kind of applicative set theory, so-called weak explicit set theory WEST, based on Gödel operations. We show that both the theories and Kripke–Platek set theory KPKP with infinity are pairwise Π1Π1 equivalent. We also show analogous assertions for subtheories with ∈-induction restricted in various ways and for supertheories extended by powerset, beta, limit and Mahlo operations. Whereas the upper bound is given by a refinement of inductive definition in KPKP, the lower bound is by a combination, in a specific way, of realisability, (intuitionistic) forcing and negative interpretations. Thus, despite interpretability between classical theories, we make “a detour via intuitionistic theories”. The combined interpretation, seen as a model construction in the sense of Visser's miniature model theory, is a new way of construction for classical theories and could be said the third kind of model construction ever used which is non-trivial on the logical connective level, after generic extension à la Cohen and Krivine's classical realisability model.