BGC Contracting Pty Ltd v The Pilbara Infrastructure Pty Ltd - [2007] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BGC CONTRACTING PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2007] WASC 200

CORAM: TEMPLEMAN J

HEARD: 22 AUGUST 2007

DELIVERED : 30 AUGUST 2007

FILE NO/S: CIV 1783 of 2007

BETWEEN: BGC CONTRACTING PTY LTD
Plaintiff
AND
THE PILBARA INFRASTRUCTURE PTY LTD
Defendant

Catchwords:

Practice and procedure - Setting aside default judgment - Defendant's solicitor places incorrect file number on appearance - Registry accepts appearance - Whether appearance entered - Construction of termination deed and subsequent correspondence - Defendant's intention to plead judgment amounts were unreasonable, unnecessary and contrary to parties' agreement - Relationship between agreement and termination deed - Defendant's admission - Whether correspondence without prejudice - Whether defence on merits

Legislation:

Rules of the Supreme Court 1971 (WA), O 2, O 12, O 21

Result:

Application dismissed
Injunction discharged

Category: B

Representation:

Counsel:

Plaintiff: Mr M C Hotchkin
Defendant: Mr N W McKerracher QC & Mr S R Boyle

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Clayton Utz

Case(s) referred to in judgment(s):

ACN 076 676 438 Pty Ltd (In Liq) v A‑Comms Teledata Pty Ltd [2000] WASC 214
Bates v Queensland Newspapers Pty Ltd [2001] QSC 83
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513

TEMPLEMAN J: On 14 August 2007, the plaintiff in this action entered judgment for some $13.66 million and costs, in default of the defendant's appearance to the writ. The writ had been issued on 3 August and served the same day.
As a result of the judgment, the plaintiff was entitled to payment of the judgment sum from monies held by its solicitors in a trust account. The defendant had deposited funds in that account as security for the performance of its obligation to pay the plaintiff for work carried out under an agreement to which I shall refer below.
Later on 14 August, I heard an application by the defendant for an interim injunction to restrain the plaintiff from disbursing any part of the judgment sum.
The application was made ex parte, but on notice to the plaintiff's solicitors, who were able to attend, albeit at very short notice.
The basis for the application was that the judgment had been obtained irregularly because (it was said) the defendant had entered an appearance.
For reasons which I then gave ex tempore, I considered that the plaintiff had obtained its judgment regularly, but that the defendant appeared to have a good defence to the claim. I therefore granted an interim injunction and gave directions which included the filing of affidavits by the plaintiff, so that the issues could be explored properly.
On 16 August, in compliance with those directions, the defendant filed a chamber summons in which it sought, inter alia, to have the judgment set aside…

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.

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Details

Case: [2007] WASC 200
Decision Date: 30 AUGUST 2007

CaseChat Overview and Summary

The parties to the proceeding were BGC Contracting Pty Ltd, the plaintiff, and The Pilbara Infrastructure Pty Ltd, the defendant. The dispute centred on whether the plaintiff was entitled to have a default judgment set aside and an injunction discharged. The case was heard by the Supreme Court of Western Australia. The plaintiff sought to set aside a default judgment entered against it in a previous proceeding. The plaintiff contended that its solicitor had mistakenly placed the incorrect file number on its appearance, leading to the entry of the default judgment. The plaintiff argued that the default judgment should be set aside and the injunction discharged, as the mistake was not its fault.

The court was required to determine whether the appearance entered by the defendant's solicitor was effective and whether the appearance was entered with the incorrect file number. The court was also required to consider the construction of the termination deed and subsequent correspondence between the parties. The court had to determine whether the defendant's intention to plead that the judgment amounts were unreasonable, unnecessary and contrary to the parties' agreement was reasonable. The court also had to consider whether the defendant's admission was without prejudice and whether there was a defence on the merits.

The court found that the appearance entered by the defendant's solicitor was effective and that the incorrect file number did not render the appearance invalid. The court held that the termination deed and subsequent correspondence between the parties demonstrated that the defendant's intention to plead that the judgment amounts were unreasonable, unnecessary and contrary to the parties' agreement was unreasonable. The court found that the defendant's admission was without prejudice and that there was no defence on the merits. The court dismissed the application to set aside the default judgment and discharged the injunction.

The court ordered that the application be dismissed and the injunction discharged. The court found that the plaintiff had not established a sufficient case for setting aside the default judgment or discharging the injunction. The court held that the plaintiff's delay in bringing the application was unreasonable and that the defendant would be prejudiced if the application was granted. The court also found that there was no defence on the merits and that the plaintiff's application should be dismissed.

Orders

Orders of the court

Application dismissed

Injunction discharged

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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