Bank of Western Australia Ltd v Radovanovic
[2012] WASC 162
•18 MAY 2012
BANK OF WESTERN AUSTRALIA LTD -v- RADOVANOVIC [2012] WASC 162
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 162 | |
| 18/05/2012 | |||
| Case No: | CIV:3180/2011 | 10 MAY 2012 | |
| Coram: | MASTER SANDERSON | 10/05/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BANK OF WESTERN AUSTRALIA LTD ANDJELKA RADOVANOVIC BLAZ RADOVANOVIC STEVE VICTOR TOTH JANOS TOTH |
Catchwords: | Appeal from decision of Registrar allowing default judgment to be entered Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 20 r 4, O 59 r 9, O 60A r 5, O 62A |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANDJELKA RADOVANOVIC
First Defendant
BLAZ RADOVANOVIC
First-named Second Defendant
STEVE VICTOR TOTH
Second-named Second Defendant
JANOS TOTH
Third-named Second Defendant
Catchwords:
Appeal from decision of Registrar allowing default judgment to be entered - Turns on own facts
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 4, O 59 r 9, O 60A r 5, O 62A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr B C Smith
First Defendant : Mr V Dangubic
First-named Second Defendant : Mr V Dangubic
Second-named Second Defendant : Mr V Dangubic
Third-named Second Defendant : Mr V Dangubic
Solicitors:
Plaintiff : Gadens Lawyers
First Defendant : Frichot & Frichot
First-named Second Defendant : Frichot & Frichot
Second-named Second Defendant : Frichot & Frichot
Third-named Second Defendant : Frichot & Frichot
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This was the defendants' application for an extension of time within which to appeal a decision of Registrar C Boyle, granting leave to the plaintiff to file judgment in default of defence. I granted the extension of time and then heard the appeal. At the conclusion of the hearing, I dismissed the appeal and indicated I would provide reasons for doing so. These are those reasons.
2 Dealing first with the extension of time, the length of the delay is not extensive. The defendants were required to file their appeal within three days of the decision. They were a day late. The delay was explained by the need to obtain instructions. In my view, the delay was so short and the explanation so reasonable, leave should be granted.
3 An appeal under O 60A r 5 of the Rules of the Supreme Court1971 (WA) is commenced by filing a notice of appeal (r 5(1)). The notice of appeal must state briefly, but specifically, the grounds of appeal. The defendants have produced and served two documents which are apparently notices of appeal. The first is a document dated 26 April 2012. It is headed 'Notice of Appeal to Master/Judge in Chambers'. The second document is also dated 26 April 2012 and is in the format adopted by the Court of Appeal. It appears not to have been filed, but was served. It is headed 'Application for Review of Registrar's Decision'.
4 The grounds of appeal stated in the first notice are:
(1) the Defendants had a defence to the Plaintiff's claim;
(2) no money was due and payable by the Defendants to the Plaintiff at the time judgment was given;
(3) leave was supposed to be granted to Defendants' Application to file their defence out of time.
5 Different grounds of appeal were stated in the second notice of appeal. The three grounds of appeal stated in the second notice are:
(1) No time was granted to the Defendants' solicitor to obtain instructions from the clients regarding the Plaintiff's amended Chamber Summons and the debt owing, if any, nor order was made about their application made in the Court on 19 April 2012;
(2) No time was granted to the Defendants to file their defence nor order was made about their application made in the Court on 19 April 2012;
(3) Leave was granted to the Plaintiff to enter judgment in default of defence in circumstances where:
- (a) No default in repayment of the loan was present;
(b) No monies due and payable by the Defendants to the Plaintiff were present;
(c) the Plaintiff's solicitor's Certificate showed incorrect ground any monies due and payable by the Defendants to the Plaintiff and in particular if any money was allegedly payable was not due and related to the costs of these Court proceedings and about which no order was made by the Court for entitlements and amount.
6 It is unnecessary to say much about the action itself. The plaintiff lent money to the defendants, the loan being secured over certain properties in Girrawheen and Balga. The plaintiff alleges the defendants defaulted in repayment of the loan. They issued a default notice and the default was not rectified. They then issued these proceedings. The defendants did not file a defence as they were required to do under the rules and the plaintiff applied to the case management registrar for judgment. The learned registrar entered judgment in default of defence.
7 The majority of the grounds of appeal stated in the notices are based on the assertion there was no default on the loan account or that no money was due to the plaintiff at the date of judgment due to payments made to the account by the defendants. As submitted by the plaintiff, this claim is misconceived.
8 A notice of default dated 6 May 2011 was served on each of the defendants by registered post sent to the address recorded on the titles of the mortgage properties for the defendants. Nowhere in the affidavit material filed by the defendants is it asserted the notices were not received. Further, it is nowhere asserted that as at the date the notices were received the defendants were not in default under the mortgage. Clearly, they were.
9 The notice of default stated by its terms that if the 'total amount due' (as that phrase is defined in the notice) was not paid by the rectification date, then the whole of the amount of the loan would become due and payable. The terms of the default notice were consistent with the terms of the loan agreement. The defendants failed to rectify the default specified in the default notice before the rectification date. Under the terms of the contract, then, the whole of the loan was due and payable. Nothing in the evidence led by the defendants suggested anything to the contrary. In other words, even at this appeal the defendants were unable to point to
(Page 5)
- any evidence they were not liable to the plaintiff as alleged in the statement of claim. The defendants have no defence on the merits.
10 Pursuant to O 20 r 4, a defendant who enters an appearance must, unless the court gives leave to the contrary, serve a defence on the plaintiff within 14 days after the entry of an appearance or the statement of claim is served, whichever is the later. In this case, the writ of summons was indorsed with a statement of claim. Each of the defendants was served between November 2011 and January 2012. An appearance was filed for the first defendant and the first-named second defendant on 20 March 2012. An appearance for the second and third-named second defendants was filed on 27 March 2012. By 19 April 2012, the defendants were clearly in default of filing defences and had not obtained leave to do so out of time.
11 In relation to ground 3(c), of the second notice, the plaintiff's rights in relation to enforcement costs are contained in par A19 of the loan terms and cl 3.2 of the mortgage provisions. These terms permit the debiting of enforcement expenses to the defendants' loan account as and when these expenses are incurred. An order of the court is not necessary.
12 Certain other matters were mentioned by counsel for the defendants in written and oral submissions which do not relate directly to anything found in the appeal notices. Nonetheless, for the sake of completeness, I will deal with each of the matters raised.
13 At the time default judgment was entered, a certificate showing the amount owing was produced by the plaintiff. Such a certificate is produced under par 9.4.1 of the Consolidated Practice Direction. It is not an affidavit and it is not required to be served prior to the hearing for leave to enter default judgment under O 62A.
14 The memorandum of conferral filed pursuant to O 59 r 9 is, in all respects, satisfactory. It is not necessary for the plaintiff to have made any particular offer or proposal to the defendants for the conferral to be sufficient. Nor is it necessary for the plaintiff to have accepted any particular offer or proposal from the defendants. The plaintiff required the full payment of the amount owing and possession of the securities. The defendants were unable or unwilling to comply with the plaintiff's requirements and proceedings were issued accordingly.
15 The defendants complain they were not served with a chamber summons advising an application was to be made for leave to enter judgment. In fact, at the hearing, they were represented by a solicitor.
(Page 6)
- They had notice of what was proposed. Any alleged lack of service does not provide a ground for setting aside this judgment.
16 In my view, the appeal was without merit. Accordingly, it was dismissed with costs.
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