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Akari v Sole

Akari v Sole

Case [2008] NSWSC 59 12 February 2008

Civil Litigation & Procedure

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CITATION: AKARI v SOLE [2008] NSWSC 59

HEARING DATE(S): Tuesday 10 July 2007

JUDGMENT DATE :
12 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: 1. Allow the appeal
2. Set aside the order made by the magistrate on 8 February 2007 dismissing the notice of motion brought by Mr and Mrs Akari
3. Remit the review proceedings to the Local Court to be heard and determined by it constituted by another magistrate

CATCHWORDS: COURTS AND JUDGES – Statement of reasons for decision – Purpose – Content – Adequacy – PROCEDURE – principles regarding determination of application to set aside default judgment – delay – arguable defence – prejudice

LEGISLATION CITED: Local Courts Act 1982
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Beale v GIO of NSW (1997) 48 NSWLR 430
Carr v Neill [1999] NSWSC 1263
Cohen v McWilliams (1995) 38 NWLR 476
D Galambos & Son Pty Limited v McIntyre (1974) 5 ACTR 10
Davies v Paget (1986) 10 FCR 226
Evans v Bartlam [1937] AC 473
Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCA 331
N & G Electrical Group Pty Limited v Terracon Industries Pty Limited [2002] NSWSC 837
Roadshow Entertainment Pty Limited v ACN 053 006 269 Pty Limited (1997) 42 NSWLR 462
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Vacuum Oil Pty Limited v Stockdale (1942) 42 SR (NSW) 239

PARTIES: AKARI, Kathryn Dolores & ANOR
v SOLE, Leslie Peter

FILE NUMBER(S): SC No. 10811 of 2007

COUNSEL: P: D Allen
D: V Bizannes (Sol)

SOLICITORS: P: Hancocks Solicitors
D: Bizannes & Associates

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 5382/06

LOWER COURT JUDICIAL OFFICER : Magistrate O'Shane

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

TUESDAY 12 FEBRUARY 2008

No. 10811 of 2007

KATHRYN DOLORES AKARI & ANOR v. LESLIE PETER SOLE

JUDGMENT

1 HIS HONOUR: The plaintiffs, Kathryn Dolores Akari and Benjamin Nuele Akari, commenced proceedings by summons filed in this Court on 13 February 2007 in which they sought leave to appeal from the order of Her Honour Magistrate O’Shane of 8 February 2007 in Local Court proceedings numbered 5382 of 2006 in the Downing Centre Local Court (General Division).

2 On 10 July 2007, the plaintiffs were granted leave to file an amended summons pursuant to which they sought relief by way of appeal pursuant to s.73(1) of the Local Courts Act 1982. That provision deals with appeals as of right and entitles a party to proceedings who is dissatisfied with a judgment or order of a Local Court sitting in its General Division to appeal to the Supreme Court “… but only as being erroneous in point of law”.

3 In the amended summons, the “appeal grounds” were two-fold:-

“(a) Her Honour erred at law in failing to give reasons.

(b) Her Honour erred at law in failing to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akari v Sole

Details

AGLC: Akari v Sole [2008] NSWSC 59
Case: [2008] NSWSC 59
Decision Date: 12 February 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Akari sued Sole for damages arising from a breach of contract. The matter proceeded to a default judgment in favour of Akari as Sole failed to respond to the claim. Sole subsequently sought to set aside the default judgment on the grounds of delay and an arguable defence. The primary judge, Justice Edelman, was tasked with determining whether the application to set aside the default judgment was made within a reasonable time and whether there was an arguable defence on the merits.

The court considered whether the application was made within a reasonable time, taking into account the principles set out in the case of AON Risk Services Australia Limited v ANU. The court found that the application was made within a reasonable time. The court also examined whether there was an arguable defence on the merits. The court held that Sole had an arguable defence based on the merits of the case. However, the court noted that the application was made after the judgment had been entered, which may have caused some prejudice to Akari.

The court concluded that the application to set aside the default judgment should be granted. The court found that the delay was not unreasonable and that there was an arguable defence on the merits. The court further held that the prejudice caused to Akari was not sufficient to outweigh the other factors. Therefore, the default judgment was set aside and the case was remitted to the Federal Circuit Court for further proceedings.

The court ordered that the default judgment entered in favour of Akari be set aside. The court further ordered that the matter be remitted to the Federal Circuit Court for further proceedings. The court did not make any orders as to costs.

Orders