C and M Partnership v Van Der KUYL - [2000] WADC 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: C AND M PARTNERSHIP -v- VAN DER KUYL & ANOR [2000] WADC 123

CORAM: COMMISSIONER REYNOLDS

HEARD: 26 APRIL 2000

DELIVERED : 12 MAY 2000

FILE NO/S: CIV 7903 of 1990

BETWEEN: C AND M PARTNERSHIP
Plaintiff
AND
HENDRICK VAN DER KUYL
First Defendant
AGNES OLWYN VAN DER KUYL
Second Defendant

Catchwords:

Appeal - Application to set aside judgment - Whether defendants have credible defence on the merits - Delay - Prejudice - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed - Judgment to stand

Representation:

Counsel:

Plaintiff:     Mr R W Bower
First Defendant             :     Mr P A Monaco
Second Defendant         :     Mr P A Monaco

Solicitors:

Plaintiff:     Corsers
First Defendant             :     Godfrey Virtue & Co
Second Defendant         :     Godfrey Virtue & Co

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

Jackamarra v Krakour (1998) 72 ALJR 819
Morris (Herbert) Ltd v Saxelby [1916] 1 AC 688
Palmer v Prince [1980] WAR 61
Robert Edward Rollond & Anor v Bank of Western Australia Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
Say v Fitzpatrick, unreported; FCt SCt of WA; Library No 6865; 14 September 1987

Case(s) also cited:

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Chitty v Mason [1926] VLR 419
Drake Personnel Ltd v Beddison [1979] VR 13
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Greenpark Pty Ltd v Odin Inns Pty Ltd [1989] WAR 322
Hitachi Sales (UK) v Mitsui Osk Lines Ltd [1986] 2 Lloyds Rep 574
John Walker and Sons Ltd v Henry Ost & Co Ltd [1970] R.P.C. 151
Kertesz v Kesster [1966] VR 453
Kostokanellis v Allen [1974] VR 596
National Australia Bank Ltd v Singh [1995] 1 Qd R 377
Stained Glass Overlay Australasia Pty Ltd (ACN 006 311 762) & Ors v Kevin James Rea & Anor [1998] WASC 325
STP (Gas) Retail Pty Ltd & Ors v Jubilee Road Pty Ltd & Anor [1998] WASCA 251
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69

COMMISSIONER REYNOLDS:

Introduction

Before me for determination is an appeal against the decision of a Deputy Registrar of this Court made on 14 December 1999 refusing to order that the default judgment entered in favour of the plaintiff on 22 December 1992 be set aside and that the entry for trial filed on 4 December 1998 be countermanded. The Deputy Registrar also ordered that the costs in connection with the defendant's application to set aside the default judgment be the plaintiff's.
The defendants seek orders inter alia that the default judgment entered against them and in favour of the plaintiff on 22 December 1992 be set aside and that the entry for trial dated 4 December 1998 be countermanded.
The appeal came on for hearing before me on 26 April 2000.

The background

A Writ of summons with a statement of claim was filed herein on 6…

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: [2000] WADC 123
Decision Date

CaseChat Overview and Summary

This case is an appeal against the decision of a Deputy Registrar of the District Court of Western Australia refusing to order that the default judgment entered in favour of the plaintiff be set aside and that the entry for trial be countermanded. The plaintiff is claiming damages for breach of contract, interest and costs against the defendants for breach of a restraint of trade provision in a written contract for the sale and purchase of the business known as "The Uptown Food Hall and Flea Market." The defendants claim that they have a credible defence on the merits and that the restraint of trade condition is unenforceable because both the period of five years and the radius of 20 kilometres are unreasonable. The appeal came on for hearing before Commissioner Reynolds on 26 April 2000. The Commissioner dismissed the appeal and held that the judgment should stand. The court found that the defendants had not shown that they have an arguable or credible defence on the merits. Further, the delay by the defendants was excessive and the plaintiff would be materially prejudiced by the delay if the judgment was set aside and it was required to establish liability. The court also found that the judgment was regularly entered.

Orders