Autorent Pty Ltd v Millar Seymour and Co - [2004] TASSC 2

[2004] TASSC 2

CITATION: Autorent Pty Ltd v Millar Seymour & Co [2004] TASSC 2

PARTIES:  AUTORENT PTY LIMITED ACN 009 509 988
  v
  O’BRIEN, Mark Augustine,
  CLARK, Warren John,
  WILLIAMS, Michael John
  SEYMOUR, Anthony Wayne,
  MILLAR, Richard Victor

trading as MILLAR SEYMOUR & CO
ALPHA PTY LTD ACN 009 492 682
  v
  O’BRIEN, Mark Augustine,
  CLARK, Warren John,
  WILLIAMS, Michael John
  SEYMOUR, Anthony Wayne,
  MILLAR, Richard Victor
trading as MILLAR SEYMOUR & CO

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  46/2001 and 47/2001
DELIVERED ON:  5 February 2004
DELIVERED AT:  Hobart

HEARING DATES: 30 May, 3 4 & 9 July, 4, 13 & 14 August, 24 September and 17 & 18 December 2003

DECISION OF: Master S J Holt

CATCHWORDS:

Procedure – Tasmania – Practice under Rules of Court – Default of appearance – Setting aside judgment – Defence on the merits – Extent to which credibility may be assessed.

Supreme Court Rules 2000 (Tas), r355.
Evans v Bartlam [1937] AC 473; Shocked v Goldschmidt (1998) 1 All ER 372; Grimshaw v Dunbar (1953) 1 QB 408; Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503; Davies v Pagett (1986) 10 FCR 226; Lau v CITIC Australia Commodity Trading Pty Ltd (1999) VSCA 34 (26 March) and West Coast Transport Pty Ltd & Anor v Adams Group Services Pty Ltd & Anor [2001] TASSC 94 followed.
Aust Dig Procedure [269]

REPRESENTATION:

Counsel:
             Plaintiffs:  D J Gunson SC and M Young
             Defendants:  W M Griffiths
Solicitors:
             Plaintiffs:  Gunson Williams
             Defendants:  Toomey Maning & Co
Judgment Number:  [2004] TASSC 2
Number of Paragraphs:  27

Serial No 2/2004
File Nos: 46 & 47/2001

AUTORENT PTY LTD v MILLAR SEYMOUR & CO and
ALPHA PTY LTD v MILLAR SEYMOUR & CO

REASONS FOR DECISION MASTER HOLT
5 February 2004

The application

There are two actions, the first commenced by Autorent Pty Ltd (“Autorent”) and the second by Alpha Pty Ltd (“Alpha”) against the members of an accountancy firm consisting of the five defendants trading under the name Millar Seymour & Co (“Millar Seymour”). Each writ was endorsed with a claim for damages for causes of action including negligence and breach of contract arising out of accountancy services provided to Autorent and Alpha between 1993 and 1997. Between those times the defendants Warren Clark, Michael Williams and Richard Millar were continuously partners in Millar Seymour. The defendant, Mark O’Brien, did not become a partner until 1 July 1996 and the defendant, Anthony Seymour, ceased to be a partner from 1 July 1996. The Autorent writ was also endorsed with a claim pursuant to the Income Tax Assessment Act (Cth) 1936 (“the Act”), s251M for reimbursement of an interest payment imposed by the Australian Taxation Office (“the ATO”). Under that provision if through the negligence of a registered tax agent a taxpayer becomes liable to pay a fine, penalty or interest the registered tax agent is liable to pay to the taxpayer the amount of that…

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 Autorent Pty Ltd v Millar Seymour and Co

Details

AGLC: Autorent Pty Ltd v Millar Seymour and Co [2004] TASSC 2
Case: [2004] TASSC 2
Decision Date: 5 February 2004

CaseChat Overview and Summary

In the matter of Autorent Pty Ltd v Millar Seymour and Co, the primary concern was a dispute originating from a default judgment entered in the Supreme Court of Tasmania. Autorent Pty Ltd, the plaintiff, had obtained a default judgment against Millar Seymour and Co, the defendant, for unpaid invoices. The defendant subsequently applied to set aside the judgment and present a defence on the merits. The court was required to determine whether it was appropriate to set aside the default judgment, considering the defendant's application and the merits of their defence.

The legal issues before the court included whether the defendant had a reasonable explanation for the default, whether the defendant's defence had merit, and the extent to which the court could assess the credibility of the defendant's evidence. The court needed to balance the principle that a default judgment should not be lightly set aside against the need to ensure that disputes are resolved on their merits where there is a viable defence. Additionally, the court had to consider whether the defendant's evidence was credible and sufficient to warrant a hearing of the defence on the merits.

In delivering the judgment, the court noted that the defendant's explanation for the default was plausible, and the defence presented had merit. The court found that there were genuine issues to be tried, which warranted a setting aside of the default judgment and an opportunity for the defendant to present its case. The court emphasised the importance of ensuring that disputes are resolved on their merits and that the credibility of evidence can be assessed, even in the context of a motion to set aside a default judgment. The court concluded that the defendant's application should be granted, and the default judgment was set aside to allow for a full hearing of the defence.

The court ordered that the default judgment entered against Millar Seymour and Co be set aside. The case was to proceed to a hearing on the merits, allowing both parties to present their cases fully. This decision highlighted the balance that courts must maintain between the finality of judgments and the need for justice to be served by hearing disputes on their merits.

Orders