| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CARRIER AIR CONDITIONING PTY LTD -v- RICHARD KEVIN THOMMESEN and RACHAEL ANNE THOMMESEN as Trustees for the THOMMESEN FAMILY TRUST & ORS [2005] WADC 195 CORAM : MCCANN DCJ HEARD : 7 SEPTEMBER 2005 DELIVERED : Delivered Extemporaneously on 7 SEPTEMBER 2005 typed from tape and edited by Trial Judge FILE NO/S : CIV 412 of 2005 BETWEEN : CARRIER AIR CONDITIONING PTY LTD Plaintiff
AND
RICHARD KEVIN THOMMESEN and RACHAEL ANNE THOMMESEN as Trustees for the THOMMESEN FAMILY TRUST
First Defendants
RICHARD KEVIN THOMMESEN
RACHAEL ANNE THOMMESEN
Second Defendants
Catchwords: Practice and procedure - Appeal from Deputy Registrar - Setting aside default judgment - Turns on own facts
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Legislation:
Nil
Result: Appeal allowed
Default judgment conditionally set aside Representation:
Counsel:
Plaintiff : Mr T Darbyshire
First Defendants : In person
Second Defendants : In person
Solicitors:
Plaintiff : Kott Gunning
First Defendants : Not applicable
Second Defendants : Not applicable
Case(s) referred to in judgment(s):
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675, 26 May 1989
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd [2000] WASCA 382
Case(s) also cited:
Nil
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1 MCCANN DCJ: This is an expedited appeal from an order of Deputy Registrar Harman made on 1 September 2005. The plaintiff appeals against a decision of the Deputy Registrar ordering that a default judgment entered in the plaintiff's favour on 12 April 2005 be set aside. The effect of the appeal being allowed would be to restore the default judgment effective 12 April 2005. Alternatively the plaintiff seeks an order that the decision of the Deputy Registrar be set aside and in lieu thereof default judgment be set aside conditionally on the basis of a sum of money being paid into court by the defendants.
2 On 5 September 2005 I ordered that the hearing of the appeal be expedited and it was heard on 6 September 2005. My reasons for ordering expedition of the hearing of the appeal were, in effect, that otherwise the outcome of the appeal might be nugatory even if successful because a property over which the plaintiff has sought to levy execution by means of a writ of fieri facias has been sold and settlement is due to take place on 9 September 2005. 3 The history of the matter can be briefly stated. On 28 February 2005 the plaintiff issued a writ of summons against the defendants endorsed with a statement of claim. 4 The writ was served on 8 March 2005 and the defendants entered an appearance on their own behalf on 15 March. On 12 April 2005 judgment in default of defence was entered by the plaintiff; the defendants having failed to file a defence in response to the endorsed statement of claim. 5 On 2 April 2005 the writ of fieri facias was issued and on 4 May 2005 the defendants filed an application supported by an affidavit for an order setting aside the default judgment. On 16 May 2005 Deputy Registrar Wallace made an order on the first return date of the application staying the writ of fieri facias pending determination of the defendants' application. Accordingly, no steps were taken by the plaintiff after that date to enforce the writ. 6 On 1 September 2005, as I have said, Deputy Registrar Harman acceded to the defendants' application, in effect granting unconditional leave to defend. I have a large number of affidavits in front of me. I have four affidavits sworn by Ms Rachael Anne Thommesen, two affidavits sworn by Mr Thomas Darbyshire on behalf of the plaintiff, and an affidavit of Mr Andrew John Bick, an employee of the plaintiff.
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7 The defendants are self-represented. Mr Richard Thommesen's mother, Mrs E Thommesen, was allowed to assist them in the presentation of their argument by leave granted by myself. As a result of being self-represented the defendants' affidavits are somewhat basic in format and content. In many respects they incorporate facts and particulars of facts by reference to annexures rather than by setting the same out in the body of the affidavits. Further, and in some respects, these affidavits compress the evidence into very few words. As will be seen, in some aspects the affidavits have fallen short of the requisite degree of particularity but on most of the issues I find that the defendants have conveyed the evidence in an admissible form.
8 The principles of law that apply to the appeal are as follows; first of all, the hearing of the appeal is a hearing de novo, that is to say, I am hearing the matter afresh and it is not necessary for the plaintiff to demonstrate any error of law or principle in the decision of the Deputy Registrar. Moreover, because it is a hearing de novo the parties are at liberty to file additional affidavit evidence and the defendants did so on 5 September. 9 Order 22 r 10 of the Rules of the Supreme Court which apply in this Court provides: "The court may set aside or vary a judgment in default of defence on such terms as the court thinks just." 10 In a case such as this, where judgment in default was regularly entered, an application to set aside that default judgment must be supported by affidavit evidence which discloses a defence on the merits and explains the failure to comply with the rules and any delay in bringing the application. (See Palmer v Prince[1980] WAR 61.) That part of the affidavit which is directed to the merits must demonstrate that if judgment is set aside and the matter argued on its merits the defendants would have a real prospect of success. (See Parker v Transfield Pty Ltd[2000] WASCA 382.) 11 The court has power to set aside default judgment on conditions and one of those conditions is to order that security be given and the security can take many forms; one of which is payment into court. It has been said that payment into court is an appropriate condition where a defence is perceived on the affidavit material to be "shadowy".
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12 The defendants' evidence on the merits must not amount to a bare denial of the plaintiff's claim. The affidavit evidence must condescend to particulars in support of that denial. It is necessary that the affidavit evidence deal, as far as possible, specifically with the plaintiff's claim and state clearly and precisely what the defence is and what facts are relied upon in support of it. It should not contain bare allegations unsupported by material facts. (See Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675, 26 May 1989 and cited in Seaman Civil Procedure in Western Australia at par 14.4.1.)
13 Turning to the particular facts of this case, the first issue the defendants must address on the evidence is an explanation of their default in filing a defence. This is dealt with in Ms Thommesen's affidavit sworn 19 May 2005. The explanation is there given that the defendants were unrepresented, had filed an appearance and were under the misapprehension that they had thereby complied with their obligations under the rules. Naturally that was a mistake and an understandable mistake in their circumstances and the plaintiff has rightly conceded that the defendants have satisfied this criterion. 14 Moving onto the next issue, that is to say whether the defendants have a defence on the merits, the situation is more complicated. There are a number of uncontentious facts which I shall briefly set out. The first is that the first defendants are trustees of the Thommesen Family Trust which at all material times traded as Thommesen's Home Comfort Specialists from premises in Rockingham. The plaintiff is a supplier of airconditioning equipment. In Mr Bick's affidavit he describes the plaintiff as being a wholesaler. The defendants further contend that the plaintiff is a manufacturer of airconditioning equipment. Nothing turns on this issue as far as I can tell for present purposes. 15 Between November 2003 and May 2004 the plaintiff supplied the first defendants with airconditioning equipment. The role of the first defendants was as a dealer in the plaintiff's airconditioning equipment. In particular, the first defendants' role was to promote the plaintiff's products to customers, to sell those products to customers and to carry out the installation of the same in the customers' homes. To this end, it was the first defendants' responsibility to ascertain the customers' needs, to specify the requisite equipment, to enter into a contract with the customers and then order the equipment from the plaintiff and upon arrival of that equipment install it in the customers' homes.
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16 One of the plaintiff's products is a split-system, ducted airconditioning system which consists of three main components: a condenser, a fan coil and a thermostat. The condenser is located outside the residence and the fan coil is located inside the residence. These units come in different sizes. The size of the system required for a given house depends on the thermal load of that house, which is determined by such factors as house size, design and insulation.
17 In February 2004 the plaintiff ran out of stock of a particular kind of indoor unit bearing serial number 40QCA030781-03. This particular unit was usually supplied with a particular size of outdoor unit. The technical advice given to the plaintiff at the time and upon which the plaintiff acted was that a larger indoor unit could be supplied to customers than would normally be supplied with that particular outdoor unit and this was done. 18 However, it later transpired that the two units, that is to say the larger indoor unit and the normal outdoor unit, were mismatched and this resulted in complaints from at least six customers to whom the defendants had sold and installed airconditioning systems. The customers' names were Renn, Hallett, Cricker, Cramer, Hyde and Greenwood. Numerous call-outs and site visits were made by both the defendants' and the plaintiff's technicians in an endeavour to resolve the complaints of those customers. 19 Turning to the statement of claim, par 5 alleges that between November 2003 and May 2004, the plaintiff supplied airconditioning equipment to the first defendants and rendered invoices for that equipment for the total sum of $77,032.71. Paragraph 6 alleges that the plaintiff has received no payment from the defendants in respect of that debt and accordingly that the first and second defendants are liable to the plaintiff in the sum of $77,032.71. The second defendants were sued as guarantors of the first defendants' obligations to the plaintiff and that guarantee can be found in a contract entered into by the plaintiff, the first defendants as trustees of the Thommesen Family Trust and the second defendants as guarantors on 2 October 2003. 20 I turn to the defendants' position. As to the alleged debt of $77,032.71, they deny indebtedness to the plaintiff in that sum. Second, the defendants claim to be entitled to a set off or counterclaim against the plaintiff in respect of advertising money and damages for breach of contractual warranties and/or negligence and/or legal fees which they contend are payable to them by the plaintiff.
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21 Dealing with the first of these issues, that is to say the quantum of the plaintiff's claim, there is little to be found in the defendants' affidavit evidence in respect of this item. They do not deny that they have failed to pay the plaintiff for goods sold and delivered to the first defendant but dispute the total amount of $77,032.71. Their evidence is as follows.
22 In Ms Thommesen's fourth affidavit sworn on 5 September 2005, she says at par 6 that the document annexed to the affidavit and marked L6 outlines the amount the defendants believe the plaintiff is liable to them for. Turning to document L6, one sees that it comprises two pages. The first of these pages sets out in a somewhat crude but nevertheless intelligible form a brief summary of the contentions of law upon which the defendants rely. 23 It then goes on to say firstly that no agreement was signed. It provides very little by way of further elucidation of that contention. On p 2, this sentence appears; "The reference AJB1 was refused. They would not accept a limit of $50,000 but we do accept this amount." What I infer the defendants are seeking to convey there is that annexure AJB1 to Mr Bick's affidavit which is entitled "Credit Application", but which in fact is a more comprehensive document setting out not only the credit application, a guarantee and indemnity and credit terms, but also terms and conditions of sale, was refused. 24 Before I go on, I should say that the copy of this document annexed to Mr Bick's affidavit is missing a page. This defect was remedied by a complete copy of annexure AJB1 being handed to me in the course of argument without objection from the defendants. Now, I infer that the defendants are contending that this document AJB1 was not signed, but that contention or denial is a bare denial which flies in the face of the copy of the agreement which comprises annexure AJB1, which clearly indicates that the document was signed by the parties. In the absence of any explanation for the denial of the agreement being signed, and in view of the document demonstrably having been signed, I find that there is no triable issue in respect of that and will proceed on the basis that the agreement was signed. 25 Moving onto the assertion that, "Reference AJB1 was refused, they would not accept a limit of $50,000," I infer that the deponent is here saying that what was refused was the credit application. That is to say the plaintiff declined to provide the defendants with a credit limit of $50,000. However, this particular part of the affidavit goes on to say that the defendants "accept this amount", and later states "a limit of $50,000 was
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in place", and there is a reference to the "full contract". So I infer that what is here being said is that the defendants did in fact enjoy a facility from the plaintiff and that a limit of $50,000 was put in place, and that the credit facility is accepted by the defendants to have been on the terms set out in the contract comprised in annexure AJB1. 26 Against that background and again referring to annexure L6 to Ms Thommesen's fourth affidavit, I understand the deponent to be saying that at some point the defendants were told by a representative of the plaintiff that they had reached the limit of their credit, that is to say $50,000, and that thereafter they paid cash for such units as were ordered, and that accordingly, the defendants dispute that the amount of indebtedness is $77,032.71. 27 So in summary, I understand the deponent to be saying that the defendants were aware that their credit limit was $50,000; that they were aware that they were not entitled to delivery of stock if they exceeded their limit; that they were told that they had reached their limit; that they thereafter paid cash; and as a result they could not owe the plaintiff more than $50,000 or thereabouts. 28 At the hearing before the Deputy Registrar the defendants handed up a summary of indebtedness and counterclaim which is now annexure TD3 to the second affidavit of Mr Darbyshire. In that summary the defendants accepted an indebtedness of $50,000 in respect of the plaintiff's claim. I hasten to add, of course, that they went on to enumerate the set-off and counterclaim that they assert. 29 I have two difficulties with this aspect of the defendants' evidence. First, the defendants admitted an indebtedness of $77,032.71 in a letter which was faxed to the plaintiff on or about 19 October 2004. This letter is annexure L2 to Ms Thommesen's fourth affidavit. (I note that the letter is marked "without prejudice", but it was admitted into evidence without objection from either party). 30 Second, the affidavit evidence I have referred to and, in particular, the incorporation by reference into Ms Thommesen's fourth affidavit of the statements made in annexure L6 is somewhat brief on particulars; that is to say no particulars are provided as to by whom, how or when the defendants were apprised by the plaintiffs that they had exhausted their credit limit, nor were any particulars provided as to which of the invoices referred to in par 5 of the statement of claim were then paid. I note that
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Mr Bick states in par 3 of his affidavit that none of those invoices have been paid. 31 Accordingly, in my view, the defendants have not adduced sufficient evidence to satisfy me that if default judgment is set aside and the plaintiff's claim is argued on the merits, there is a real prospect of successfully contending that their indebtedness did not exceed $50,000. I note that on 2 September 2005 the defendants wrote to the plaintiff directly seeking an itemisation of the amount of $77,032.71, but as I have said, that figure is fully particularised in par 5 of the statement of claim and the defendants have had ample time, both before and since these proceedings were commenced, to look to their own records to identify the invoices that have been paid. 32 Notwithstanding what I have just said, I cannot rule out the possibility that given a further opportunity to do so, the defendants may be able to further elucidate this aspect of their evidence, and as will be seen later, I take that into account in the final disposition of this appeal. 33 I turn now to deal with two issues which are related to the plaintiff's claim. The first is the plaintiff's claim for interest, and the second is the defendants' claim for a set-off in respect of moneys they allege are owed to them by the plaintiff in respect of advertising. On the subject of interest, cl 3.1 of the terms and conditions provides as follows: "Payment is due on the last working day of the month immediately following the month of delivery or supply of the goods unless otherwise stated in writing by the plaintiff. If payment is not received by the due date the plaintiff may charge liquidated damages at a rate equivalent to 2 per cent in excess of the rate of interest for the time being fixed under section 2 of the Penalty Interest Rates Act 1983." 34 That legislation is a Victorian enactment. In the statement of claim the plaintiff claimed interest at the rate of 14 per cent from 1 July 2004 until judgment pursuant to the contract. The rate of 14 per cent presumably comprises the rate prescribed under the Victorian legislation that I have just mentioned, although this is not pleaded and there is no evidence upon it, plus the increment of 2 per cent mentioned in cl 3.1. There is no dispute between the parties as to the rate being 14 per cent, and the amount claimed by the plaintiff is $8,184.46.
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35 As to the defendants' claim in respect of the advertising subsidy, on 10 September 2003 the plaintiff and the first defendant entered into a dealer agreement. That agreement is annexure AJB2 to Mr Bick's affidavit. Clause 4 of that agreement relates to what is called a co-operative advertising program, and it provides for the payment of an allowance to the first defendants of up to 2 per cent of the volume of product sold by the first defendants to be applied towards the cost of advertising.
36 In par 4 of Ms Thommesen's first affidavit, she deposes that: "The plaintiff did on numerous occasions promise an amount of $10,000 to the first defendants towards advertising, and that this would be credited to the first defendants' account." 37 Once again, this assertion is somewhat lacking in the usual particulars, but I note that it is not denied by Mr Bick in his affidavit, and it is re-asserted in a slightly different form in correspondence which is annexed to Ms Thommesen's fourth affidavit and adopted by her as her evidence. Annexure 2 is another without prejudice letter written by the defendants to the plaintiff in which it is asserted that the defendants expended the sum of $15,000 in advertising fees. It is not clear whether it is said that all of that was capable of being recouped pursuant to the cooperative advertising program. Annexure L3 to the same affidavit is a letter from the first defendants to the plaintiff dated 13 September 2004 which states as follows: "We've been promised money towards advertising since we started selling Carrier products. We were selling and advertising solely Carrier products and have done all our own advertising. The last time it was discussed we were told that 6 to 7 thousand dollars had been "put aside for us" and it would be put directly into our account against our outstanding balance." 38 So it is there asserted that as at 13 August 2004 the defendants had been promised a credit of up to $7000. Lastly in annexure TD3 to Mr Darbyshire's second affidavit, that being the summary handed up to the Deputy Registrar on 1 September, a figure of $10,000 is claimed. 39 In my view on the evidence there is a triable issue, that is to say the defendants have a real prospect of success, in relation to this issue in the sum of $10,000. The evidence shows a contractual basis for an advertising allowance being paid by the plaintiff and uncontradicted albeit
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poorly particularised evidence of them having been promised $10,000. Further, because this entitlement arises under cl 4 of the dealer agreement in my view this amount could arguably be set off against any debt owed by the defendants to the plaintiff. 40 I turn now to the defendants' counterclaim in respect of the mismatched airconditioning units. I have already outlined the nature of the problem and the plaintiff accepts that it is at fault and therefore accepts liability to rectify and/or compensate the first defendants and by so doing to reduce any indebtedness of the second defendants pursuant to their guarantee. 41 The question is what causes of action do the defendants enjoy and what is the proper assessment of the quantum of their counterclaim or set off, bearing in mind that I need to be satisfied that there is a real prospect of success in relation to that quantum. 42 The starting point is cl 9.1 of the terms and conditions of sale which is annexure AJB1 to Mr Bick's affidavit. This is a warranty clause in a familiar form which seeks to limit the plaintiff's liability for breach of warranties which would ordinarily be implied by law. In particular it provides that, to the extent that it is lawful to do so, the plaintiff's liability is limited to the repair or replacement of any goods that they have sold, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods or the supplying of the services again or the payment of the cost of having the services supplied again insofar as the fault lies in the provision of faulty services. 43 In my view it is not necessary at this interlocutory stage to outline the legal basis of the defendants' counterclaim; that is to say whether it is for breach of a contractual warranty or for negligence, since in my view the scope of the limitation of liability contained in cl 9.1 of the terms and conditions is broad enough to allow for payment of damages to the defendants in respect of each of the heads of damage claimed by them to which I now turn. 44 The starting point is Ms Thommesen's first affidavit sworn on 4 May 2005 at pars 5, 6, 7, 8 and 9. At par 5 she refers to the defendants having six customers whose systems needed to be replaced. She says that one system had been replaced by the first defendants at a cost of $4,600 and another had been rectified partially by the first defendants at a cost of $3,700.
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45 She goes on to estimate that the cost of rectifying the remaining systems would be $19,800. She states that two systems had been returned to the plaintiff but the price of those systems had not been credited to their account. She states that the credit to which the defendants were entitled was the sum of $4,181.66. I understand that was the cost originally charged by the plaintiff to the first defendants for those two units.
46 She goes on to say that the defendants would be returning the remaining four systems to the plaintiff and as such will require a further credit to their account of $8,363.32. Again I infer that that is the cost of four units or to put it slightly differently the cost of each unit was $2,090 or thereabouts. 47 The affidavit goes on to claim the sum of $1,375.10 for legal costs incurred by the defendants to that day as a result of their efforts to have the problems resolved. I understand that to be a reference to costs incurred in respect of sorting out the problems with the mismatched systems generally including costs associated with legal proceedings commenced or threatened by the dissatisfied customers. In that regard I note that at least one customer, a Mr Roger Cramer, brought proceedings in the Small Claims Tribunal. 48 Once again there is generally a lack of particularity in the defendants' assertions in Ms Thommesen's first affidavit, however, one must also refer to the other affidavit material, in particular pars 11 to 26 of Mr Bick's affidavit which set out the plaintiff's position in relation to the six dissatisfied customers, and Ms Thommesen's third affidavit and annexure 1 thereto. That annexure is another without prejudice letter, in this case from the plaintiff to the defendants. Again the letter has been admitted into evidence without objection. 49 Further, Ms Thommesen's fourth affidavit must be taken into account and in particular annexure L2, annexure L3 and annexure L8. Further, annexure TD3 to Mr Darbyshire's second affidavit must be taken into account. Although that was originally handed up to the court at first instance by way of an adjunct to the defendants' submissions it is now put into evidence by the plaintiff in support of the plaintiff's case as containing admissions, but having been put into evidence it is in evidence for all purposes and I may therefore have regard to it. 50 Unfortunately, it has not been possible for me to derive a single coherent summary of the defendants' alleged loss and damage or at least it has not been possible to do so in the affidavit material. Nevertheless, the
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materials that I have mentioned do provide some elucidation of the various heads of damage mentioned by Ms Thommesen in her first affidavit. 51 Based upon that material, and a concession made by the defendants in argument regarding annexure L2, to the effect that it assumed that seven customers had been affected by the mismatched systems instead of only six, and based on the uncontradicted evidence of Mr Bick in relation to the plaintiff having replaced the Renns' system at the plaintiff's cost, I have come to the view that the defendants have a real prospect of proving the following damages at trial. 52 Firstly, the cost to them of call-outs and attempted remedial work performed by the first defendants, $10,000. Secondly, the credit to which the defendants are entitled for six units for which payment is demanded by the plaintiff and in respect of which part of the judgment for $77,032 provided for, $12,000 (I am assuming that the removed systems have a minimal salvage value in the defendants' hands). Thirdly, the cost of removing and replacing those units with all incidental works, $12,000. This makes a total of $34,000. 53 In arriving at the last figure of $2000 per unit I have not accepted Ms Thommesen's assertion that the costs would be $19,800 because they are unparticularised. A variety of figures are included in the annexures to the affidavits. For instance, the plaintiff offered to pay $650, the defendants at one point claimed $1,050 and at another point $2,050. It is very difficult, on the state of the evidence, to arrive at a figure but one must proceed on the basis that the costs of removing and replacing the systems would be substantial including administration, overheads, subcontractors' costs, and so on. Needless to say I am not conveying any settled view on the matter and the defendants' loss and damages could prove to be more or less at trial. 54 I have not included, for instance, any component for loss of profit or damage to their reputation. That is an aspect of the matter which is not provided for in cl 9.1 of the terms and conditions, but having said that, the prospect cannot be ruled out that loss and damage of that kind would be at least arguable at trial. I am guided only by the twin requirements that there be a real prospect of success at trial demonstrated by the evidence and that the evidence meet the requirements of the rules.
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55 The next question is whether the damages of $34,000 would be available to set-off or only as a counterclaim. In my view, an equitable set-off would be available at the very least in respect of the sum of approximately of $12,500 claimed by the plaintiff in respect of the six systems that were the subject of complaint. But, in my view, for the purposes of exercising the discretion under O 22 r 10, it is permissible to look to the total sum of $34,000 irrespective of whether it is viewed as an equitable set-off in its entirety or partly an equitable set-off and partly a counterclaim for unliquidated damages.
56 So the summary is that the plaintiff's claim being for $77,032, if one acknowledges a triable issue in respect of the claimed set-off for advertising in the sum of $10,000 and a triable issue in respect of a counterclaim in respect of defective goods in the sum of $34,000, one arrives at a balance of $33,032. I will have something to say about interest in a moment. I am unable to say that the defendants' contentions in relation to this balance are totally devoid of merit because the possibility cannot be ruled out that at trial the loss and damage proved by the defendants could be higher than I have brought to account or that proof could be provided that the amount of the defendants' indebtedness was less than $77,032. 57 As I have said earlier, the defect in the defendants' evidence lies in the absence of condescension to particulars and, as a result, I find that the defendants' contention in relation to the amount of the debt, that is to say whether it is $50,000 or thereabouts or $77,000, is what I would regard as shadowy on the evidence rather than baseless. 58 So what I have in mind is to grant the defendants conditional leave to defend on the basis that a sum of money be paid into court with liberty to apply in relation to the working out of that order and in relation to the terms of the condition itself, so that it could be revisited later on by the defendants at an interlocutory stage if they are in a position to meet the requirements of the rules in relation to evidence and in particular convert what is a shadowy contention into a contention enjoying stronger prospects of success at trial. 59 The overall result is that I would grant the defendants' application to set aside default judgment subject to a condition that a sum of money be paid into court or otherwise secured to the satisfaction of the plaintiff. For instance, at one point in time it was common for money to be paid into an interest bearing account in the joint names of the parties' solicitors. Whether or not that is still in vogue or whether or not it is acceptable and
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workable in this case are matters that the parties may want to discuss between themselves. 60 As to the amount to be paid into court, it can be seen from my calculations above that a figure of around the $33,000 mark remains shadowy if I can use that expression. So far I have not said anything about interest. Some allowance for interest ought to be allowed on that sum and what I have in mind is to round the figure of $33,000 up to $35,000. Accordingly I propose, but will hear the parties first, to allow the appeal against the order of the Deputy Registrar made on 1 September 2005 and set aside the Deputy Registrar's order and in lieu thereof order the default judgment be set aside on condition that the defendants pay into court the sum of $35,000 or otherwise secure that sum to the satisfaction of the plaintiff within 14 days; and to grant liberty to apply generally and also specifically in relation to the quantum and terms of that condition should at a later date the defendants contend that they have grounds to have the condition varied in their favour either as to the form of the security or as to the quantum.
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