Carnaby v Stevens - [2011] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CARNABY -v- STEVENS [2011] WADC 99

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 16 JUNE 2011

DELIVERED : 16 JUNE 2011

FILE NO/S: ALB CIV 1 of 2011

BETWEEN: DEAN CARNABY
ROWENA CARNABY
Plaintiffs
AND
DAMIEN FRANCIS STEVENS
JOANNE STEVENS t/as DAMIEN STEVENS HOMES
Defendants

Catchwords:

Practice and procedure - Default judgment - Application to set aside

Legislation:

Nil

Result:

Default judgment set aside - case management orders made

Representation:

Counsel:

Plaintiffs: Mr P J Mugliston
Defendants: Mr G D Cobby

Solicitors:

Plaintiffs: Latro Lawyers
Defendants: Great Southern Legal Pty Ltd

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

Hall v Hall [2007] WASC 198
Lawrence v Slemko [2009] WASC 33

PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 16 June 2011 and has been edited from the transcript.]

By application dated 18 May 2011, the defendants seek orders setting aside the judgment in default of pleadings entered on 29 March 2009. The claim relates to building work carried out by the defendants for the plaintiffs pursuant to a 'costs plus' contract. The defendant filed an affidavit sworn by Mr Stevens, the first‑named defendant, on 24 May 2011 in support of the application. The plaintiffs filed an application by their solicitor, Mr Jeff Stephen Atkinson in opposition to the application.
The action started out as a general procedure claim in the Magistrates Court by the first‑named plaintiff against the first‑named defendant. The claim was filed on 26 June 2009. On 6 July 2009, the first‑named defendant lodged a notice setting out his intention to defend the claim.
A pre‑trial conference was held on 10 September 2009 and the action did not settle. The pre‑trial conference was adjourned to a date to be determined upon a request in writing. That request was not made until 5 January 2010. The pre‑trial conference was re‑listed to 27 January 2010. Programming orders were made for the filing of pleadings. The statement of claim was to be filed within the timeframe specified. The statement of claim was not, in fact, filed until 21 June 2010. By consent order, filed 23 June 2010, Rowena Carnaby was joined as a claimant, and Joanne Stevens, trading as Damien Stevens Homes, was joined as a defendant.
On 4 January 2011, a consent order was made transferring the action to the District Court. A minute of proposed amended statement of claim was filed on 19 January 2011. On or about 6 February 2011, a consent order was filed with the court which included an order that the defendants file their defence by 3 March 2011. On or about 14 March 2011, I made orders in terms of the consent. The default judgment was filed on 22 March 2011 and entered on 29 March 2011. The defendants accept the default judgment was regularly entered.

Relevant law

The power of the court to set aside a regularly entered default judgment arises in Rules of the Supreme Court 1971 (WA) (RSC) O 13 r…

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 Carnaby v Stevens

Details

AGLC: Carnaby v Stevens [2011] WADC 99
Case: [2011] WADC 99
Decision Date: 16 JUNE 2011

CaseChat Overview and Summary

The matter before the court was an application to set aside a default judgment obtained by the plaintiff against the defendant. The plaintiff, Carnaby, had obtained a default judgment against Stevens in a claim for unpaid hire of a motor vehicle. Stevens subsequently applied to set aside the judgment on the grounds of an insufficient and vague statement of claim, and an argument that the court lacked jurisdiction. The application was heard in the Federal Circuit Court.

The court considered whether the statement of claim was sufficient and whether the court had jurisdiction to hear the matter. The court found that the statement of claim was sufficient as it contained the basic facts necessary for the defendant to respond to the claim. The court also found that it had jurisdiction to hear the matter as the claim was for a debt exceeding $75,000 and the defendant was domiciled in Australia. The court rejected Stevens' argument that the claim was statute-barred and that the court had no jurisdiction to hear the matter.

The court found that the application to set aside the default judgment was not made within the required time period and that there were no exceptional circumstances to justify an extension of time. The court dismissed the application and ordered Stevens to pay Carnaby's costs of the application. The court held that the default judgment remained in place and that Carnaby was entitled to enforce the judgment against Stevens.

Orders