Bettio v Mahfoud - [2020] SADC 26

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
BETTIO & ANOR v MAHFOUD & ANOR
[2020] SADC 26
Decision of His Honour Judge O'Sullivan
20 March 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER
The second defendant, Bizfine Pty Ltd, sought an order that orders made ex parte by a Master of this Court renewing a summons and extending time for the plaintiffs to serve the proceedings be set aside.
Bizfine based its application on 4 grounds:
1. The order was obtained in circumstances that contravened the Harman undertaking;
2. The order was obtained in circumstances of material non-disclosure;
3. The plaintiffs failed to comply with a condition of the orders; and
4. “Other factors”.
Held:
1. The plaintiffs did not breach the Harman undertaking.
2. There was no material non-disclosure.
3. To the extent the plaintiffs failed to comply with a condition of the orders, that failure was, in the circumstances, an irregularity, and does not comprise a basis to set aside the Master’s orders.
4. The “other factors” did not provide a basis to set aside the Master’s orders.
5. The second defendant has not satisfied the Court that it should exercise its discretion to set aside the Master’s order.
6. The application is dismissed.
7. Parties to be heard on question of costs.
District Court Civil Rules 2006 (SA); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), referred to.
Hearne v Street (2008) 235 CLR 125; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Forty Two International Pty Ltd v Barnes [2010] FCA 397 at [72] ; K & S Corp Ltd v Number 1 Betting Shop [2005] SASC 228; Riddick v Thames Board Mills Ltd [1977] QB 881; Gibbs v Williams (1979) 24 SASR 243; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639, considered.

BETTIO & ANOR v MAHFOUD & ANOR
[2020] SADC 26
Introduction

By application filed on 19 December 2019, the second defendant (“Bizfine”) seeks an order that order 1 of the ex parte orders made by a Master of this Court on 21 June 2018 be set aside.
The Master’s orders made that day are:
1Order renewing summons for a period of twelve months from 22/6/18 to 22/6/19 and the plaintiffs have a corresponding extension of time pursuant to Rule 39(2) within which to serve the defendant.
2Costs reserved.
3Plaintiffs to notify the defendants or, if applicable, the defendants’ insurer of these orders not later than the time at which the proceedings are served upon the defendants or, if applicable, the defendants’ insurer.
Bizfine bases its application on 4 grounds:
1The order was obtained in circumstances that contravened the Harman undertaking;
2The order was obtained in circumstances of material…

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 Bettio v Mahfoud

Details

AGLC: Bettio v Mahfoud [2020] SADC 26
Case: [2020] SADC 26
Decision Date: 20 March 2020

CaseChat Overview and Summary

The case of Bettio & Anor v Mahfoud & Anor in the District Court of South Australia involved an application by the second defendant, Bizfine, to set aside orders made ex parte by a Master of the Court renewing a summons and extending the time for the plaintiffs to serve the proceedings. Bizfine based its application on four grounds: the order was obtained in circumstances that contravened the Harman undertaking, the order was obtained in circumstances of material non-disclosure, the plaintiffs failed to comply with a condition of the orders, and other factors. The court considered each ground in turn. The court found that the plaintiffs did not breach the Harman undertaking and that there was no material non-disclosure. To the extent the plaintiffs failed to comply with a condition of the orders, that failure was an irregularity and did not comprise a basis to set aside the Master’s orders. The “other factors” did not provide a basis to set aside the Master’s orders. The court declined to exercise its discretion to set aside the Master’s order. The application was dismissed. The court heard the parties on the question of costs.

Orders