CARNEGIE CAPITAL PTY LTD -v- INTERSTYLE BUILDING PTY LTD & ORS [2004] WASC 65

Link to Appeal :

[2004] WASCA 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 65
Case No:	CIV:1943/2001	Heard:	1 APRIL 2004
Coram:	MASTER SANDERSON	Delivered:	6/04/04
No of pages:	13	Judgment Part:	1 of 1
Result:	Judgment entered against second defendant, Application by second defendant for extension of time to file defence dismissed, Application by second defendant to set aside default judgment dismissed
Category:	B
PDF Version

Parties:	CARNEGIE CAPITAL PTY LTD (ACN 079 552 051) INTERSTYLE BUILDING PTY LTD (ACN 071 021 952) STELLEC PTY LTD (ACN 068 359 188) CLAYTON RAMSAY TRACEY RAMSAY
Catchwords:	Practice and procedure Application by plaintiff for leave to enter judgment against second defendant Application by second defendant for extension of time to file defence Application by third defendant to set aside default judgment Turns on own facts
Legislation:	Nil
Case References:	Gibbings v Strong (1884) 26 Ch D 66 Palmer v Prince [1980] WAR 61 Wiedenhofer v The Commonwealth (1970) 122 CLR 172 ACCC v Bio Enviro Plan Pty Ltd [2003] FCA 232 Compaq Computer Australia Pty Ltd v Merry, unreported; Fed Ct; 14 August 1998 Faithful v Woodley (1890) 43 Ch D 287 Noden v Mason [1926] VLR 41 Parker v Transfield Pty Ltd & Anor [2000] WASCA 382 Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 Pereira v DPP (1989) 82 ALR 217 Termijtelen v Van Arkel [1974] 1 NSWLR 525

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CARNEGIE CAPITAL PTY LTD -v- INTERSTYLE BUILDING PTY LTD & ORS [2004] WASC 65 CORAM : MASTER SANDERSON HEARD : 1 APRIL 2004 DELIVERED : 6 APRIL 2004 FILE NO/S : CIV 1943 of 2001 BETWEEN : CARNEGIE CAPITAL PTY LTD (ACN 079 552 051)

Plaintiff

AND

INTERSTYLE BUILDING PTY LTD (ACN 071 021 952)

First Defendant

STELLEC PTY LTD (ACN 068 359 188)

Second Defendant

CLAYTON RAMSAY

TRACEY RAMSAY

Third Defendants

Catchwords:

Practice and procedure - Application by plaintiff for leave to enter judgment against second defendant - Application by second defendant for extension of time to file defence - Application by third defendant to set aside default judgment - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Judgment entered against second defendant

Application by second defendant for extension of time to file defence dismissed
Application by second defendant to set aside default judgment dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Ms C A Bahemia

Second Defendant : Ms C A Bahemia

Third Defendants : Ms C A Bahemia

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Hammond Worthington

Second Defendant : Hammond Worthington

Third Defendants : Hammond Worthington

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

Gibbings v Strong (1884) 26 Ch D 66
Palmer v Prince [1980] WAR 61
Wiedenhofer v The Commonwealth (1970) 122 CLR 172

Case(s) also cited:

ACCC v Bio Enviro Plan Pty Ltd [2003] FCA 232

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: [2004] WASC 65
Decision Date

CaseChat Overview and Summary

Carnegie Capital Pty Ltd initiated legal proceedings against Interstyle Building Pty Ltd, Stellec Pty Ltd, and Clayton and Tracey Ramsay in the Supreme Court of Western Australia. The plaintiff alleged that the defendants were involved in a scheme that resulted in the plaintiff overpaying for a building project, with the defendants benefiting from the overcharge. The second and third defendants failed to file their defences within the required time, leading to the plaintiff seeking default judgment against them. The second defendant also sought an extension of time to file its defence, while the third defendants sought to set aside the default judgment against them. The court found that the second defendant's defence was not strong enough to warrant refusing the default judgment, and the explanation for the delay in filing the defence was inadequate. The court also found that the third defendants' default judgment should be stayed pending the outcome of the main case against the first defendant. The court ordered that the second defendant's irregularly filed defence be removed from the record, allowed the plaintiff to enter judgment against the second defendant, dismissed the second defendant's application for an extension of time, and dismissed the third defendants' application to set aside the default judgment. The court directed the parties to discuss costs.

Orders