CATTEEUW v Books to Go (Aust) Pty Ltd ATF W and N STIRLING Family Trust
[2008] WADC 141
•19 SEPTEMBER 2008
CATTEEUW & ANOR -v- BOOKS TO GO (AUST) PTY LTD ATF W & N STIRLING FAMILY TRUST & ORS [2008] WADC 141
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 141 | |
| Case No: | CIV:2297/2006 | 14 APRIL 2008 AND 29 AUGUST 2008 | |
| Coram: | SCHOOMBEE DCJ | 19/09/08 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed; Default judgment set aside | ||
| PDF Version |
| Parties: | GHISLAIN CATTEEUW PRIMEMARK PTY LTD (ACN 114 583 523) BOOKS TO GO (AUST) PTY LTD ATF W & N STIRLING FAMILY TRUST WARWICK STIRLING NAOMI STIRLING |
Catchwords: | Practice and procedure Default judgment Irregularly obtained Application for Default Judgment concerning "other claims" Application not served Whether plaintiffs entitled to rely on unstamped agreement Whether plaintiff's set up agreement as valid and effectual Whether order to set aside default judgment should be granted despite lack of conferral pursuant to O 59 r 9 |
Legislation: | Rules of the Supreme Court 1971, O 22 7(1) Stamp Act 1921, s 27(1) |
Case References: | Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128 ACN 076 676 438 Pty Ltd (In Liq) & Anor v A Comms Teledata Pty Ltd & Anor [2000] WASC 214 Capesail Nominees Pty Ltd (In Liq) & Another v Ride & Ors [2002] WASC 29 Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 Mason v Motor Traction Co Ltd [1905] 1 Ch 419 National Australia Bank Limited v Meehan, unreported; SCt of Vic Appeal Division; No 8407 of 1993; 24 February 1994 Peddie v Stein (1988) NSW ConvR 55-379 Richlaw Pty Ltd and Clayhill Holdings Pty Ltd & Ors v Blackburne, unreported; FCt SCt of WA; Library No 980242; 7 May 1988 White v Weston [1968] 2 QB 647 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
PRIMEMARK PTY LTD (ACN 114 583 523)
Second Plaintiff
AND
BOOKS TO GO (AUST) PTY LTD ATF W & N STIRLING FAMILY TRUST
First Defendant
WARWICK STIRLING
Second Defendant
NAOMI STIRLING
Third Defendant
(Page 2)
Catchwords:
Practice and procedure - Default judgment - Irregularly obtained - Application for Default Judgment concerning "other claims" - Application not served - Whether plaintiffs entitled to rely on unstamped agreement - Whether plaintiff's set up agreement as valid and effectual - Whether order to set aside default judgment should be granted despite lack of conferral pursuant to O 59 r 9
Legislation:
Rules of the Supreme Court 1971, O 22 7(1)
Stamp Act 1921, s 27(1)
Result:
Appeal allowed;
Default judgment set aside
Representation:
Counsel:
First Plaintiff : Mr J C Hammond
Second Plaintiff : Mr J C Hammond
First Defendant : Ms H P Sisto
Second Defendant : Ms H P Sisto
Third Defendant : Ms H P Sisto
Solicitors:
First Plaintiff : Hammond Worthington
Second Plaintiff : Hammond Worthington
First Defendant : Bridge Waters Legal
Second Defendant : Bridge Waters Legal
Third Defendant : Bridge Waters Legal
Case(s) referred to in judgment(s):
Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128
ACN 076 676 438 Pty Ltd (In Liq) & Anor v A Comms Teledata Pty Ltd & Anor [2000] WASC 214
Capesail Nominees Pty Ltd (In Liq) & Another v Ride & Ors [2002] WASC 29
(Page 3)
Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245
Mason v Motor Traction Co Ltd [1905] 1 Ch 419
National Australia Bank Limited v Meehan, unreported; SCt of Vic Appeal Division; No 8407 of 1993; 24 February 1994
Peddie v Stein (1988) NSW ConvR 55-379
Richlaw Pty Ltd and Clayhill Holdings Pty Ltd & Ors v Blackburne, unreported; FCt SCt of WA; Library No 980242; 7 May 1988
White v Weston [1968] 2 QB 647
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161
(Page 4)
1 SCHOOMBEE DCJ: This matter comes before me by way of an appeal of a decision by Deputy Registrar Hewitt on 19 April 2007 pursuant to which default judgment was granted in favour of the plaintiffs. Deputy Registrar Hewitt made the following orders:
"1. judgment be entered for the Second Plaintiff (Primemark Pty Ltd) against the First, Second and Third Defendants for damages in the sum of $75,000 plus interest on such damages from 3 August 2005 at the rate of 6 per cent per annum;
2. it is declared that the agreements pleaded to in pars 6.1, 6.2 and 6.3 of the Statement of Claim are void and are of no effect;
3. the Defendants pay the costs of the Second Plaintiff, including the cost of the action and the application, such costs to be taxed;
4. the First-Named Plaintiff's claim be dismissed with no order as to costs."
2 After these orders had been made the defendants filed a chambers summons on 4 December 2007 pursuant to which they asked that the summary judgment (sic) be set aside and that they be granted leave to file and serve a defence and counter claim. Counsel for the defendants advised me that at the hearing of this chamber summons on 20 December 2007 Registrar Hewitt came to the conclusion that an application to set aside the default judgment was no longer viable, as the orders made by him on 19 April 2007 had already been extracted. Accordingly, Deputy Registrar Hewitt made an order that the chamber summons be deemed and appeal. He also allowed the plaintiffs to file and serve an affidavit in answer to the affidavits filed by the defendants in support of their chamber summons to set aside the default judgment.
3 This matter first came before me on 14 April 2008. On that occasion a number of issues were canvassed by the parties as set out in their respective submissions. The defendants' submissions essentially dealt with the reasons for the failure to file their defence, the merits of their case and the issue whether there had been delay in bringing the application to set aside the default judgment. The defendants also raised the point that the default judgment was irregularly obtained because the plaintiffs were relying on the three agreements pleaded in pars 6.1, 6.2 and 6.3 of the statement of claim which had not been stamped.
(Page 5)
4 The plaintiffs set out in their submissions that the defendants had failed to confer with them as required by O 59 r 9(1) of the Rules of the Supreme Court 1971 prior to the filing of the application to set aside the default judgment, that the reason provided for the failure to file the defence was an unacceptable excuse, that the defendants had not demonstrated a credible defence on the merits by reason of the lack of detail set out in the affidavits and that the defendants were also relying on the agreements pleaded in pars 6.1, 6.2 and 6.3 of the statement of claim which had not been stamped. The plaintiffs' submissions further stated that there was no requirement for service of an application for judgment in default of a defence.
5 It was common cause between the parties that the chamber summons that had been filed by the plaintiffs' previous solicitors for judgment in default of a defence had not been served on the defendants or their solicitors.
6 In the course of the hearing on 14 April 2008 the question whether an application for a judgment in default of a defence had to be served was further explored as between the court and counsel for the plaintiffs. At the end of that hearing the court gave leave to the defendants to file a further affidavit dealing in more detail with the merits of their defence and leave to the plaintiffs to file an affidavit in reply. The court further invited the plaintiffs to file further submissions with regard to the question whether the application for default judgment should have been served on the defendants and gave leave to the defendants to reply to these submissions. The court further made an order that any costs thrown away by the filing of any additional affidavit by the defendants were to be paid by the defendants forthwith.
7 After that hearing the plaintiffs filed further submissions on 17 April 2008 dealing with the matter of service. The defendants also filed further submissions, but they did not touch upon the issue whether service of the application had been required. Before dealing with the content of the submissions I should briefly refer to the allegations in the statement of claim.
8 The plaintiffs' statement of claim essentially pleads that the first defendant orally informed the plaintiffs that in order to assist them in complying with the requirements of the Department of Immigration and Multicultural Affairs for permanent residence status in Australia, the first defendant was prepared to execute an agreement with the second plaintiff which would reflect a purchase by the second plaintiff of a 50 per cent
(Page 6)
- share in the defendants' business for the sum of $60,000 and the provision of $15,000 working capital. The agreement would further show that after the purchase the business was to be conducted as a partnership between the second plaintiff and the first defendant.
9 The statement of claim says that at that time the first defendant represented to the plaintiffs that the "real arrangement" between the parties would be a loan agreement pursuant to which the sum of $75,000 to be paid by the first plaintiff to the first defendant would be repaid after a period of two years. Other representations are pleaded which are said to have reflected the "real arrangement" between the parties.
10 The plaintiffs allege in their statement of claim that in reliance upon the representations the second plaintiff entered into three agreements, as pleaded in pars 6.1, 6.2 and 6.3, which essentially reflected an equity investment in the business. The plaintiffs then paid the amount of $75,000 to the defendants. The statement of claim further says that the representations were misleading and deceptive pursuant to s 52 of the Trade Practices Act 1974 and that the plaintiffs are entitled to damages pursuant to s 82 of that Act as well as an order that the agreements pleaded in pars 6.1, 6.2 and 6.3 are void and of no effect.
11 In the further submissions filed by the plaintiffs regarding the issue of service of the application for a default judgment the plaintiffs refer to O 22 r 3(1) of the Rules of the Supreme Court 1971 pursuant to which a plaintiff who has a claim for unliquidated damages only may upon failure by the defendant to serve a defence enter interlocutory judgment against the defendant and obtain an order for directions for the assessment of damages. The submissions further refer to O 22 r 7(1) which provides as follows:
"Other claims
7(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim."
(Page 7)
12 Rules 2 to 5 refer to claims for a liquidated demand, unliquidated damages, detinue and possession of land and to mixed claims. Counsel for the plaintiffs conceded that the order sought in the statement of claim which asked for the agreements pleaded in pars 6.1, 6.2 and 6.3 to be declared void and of no effect did not fall within Rules 2 to 5 and qualified as "other claims" pursuant to O 22 r 7.
13 In their further submissions the plaintiffs accepted that insofar as the statement of claim contained a claim to have the agreements pleaded in pars 6.1, .2 and 6.3 set aside, the application for default judgment should have been served on the defendants. However, as regards the claim for unliquidated damages, the plaintiffs submitted that the application for default judgment did not have to be served and that the orders granted by Deputy Registrar Hewitt were therefore valid and should be upheld insofar as they allowed for judgment to be entered for the second plaintiff against the defendants in the sum of $75,000. The plaintiffs' submissions stated that it was "not of concern" to them if the agreements pleaded at pars 6.1, 6.2 and 6.3 were not set aside.
14 At the further hearing of this matter on 29 August 2008 counsel for the plaintiffs fairly and properly pointed out that the plaintiffs' submissions of 17 April 2008 were not quite correct in that O 22 r 3(1) only allowed for an interlocutory judgment to be entered (without service on the defendants) where the plaintiffs' claim was for unliquidated damages only. Counsel for the plaintiffs therefore conceded that the application for default judgment (which was handled by another firm of solicitors) should have been served on the defendants and was accordingly irregularly obtained.
15 The concession that the application for default judgment should have been served on the defendants is correctly and properly made. Order 22 r 3(1) refers specifically to a plaintiff's claim which is "for unliquidated damages only", whereas O 22 r 7(3) provides that an application for a default judgment which concerns "other claims" must be by way of summons. Order 59 r 5 of the Rules of the Supreme Court1971 provides that a summons must be served seven days before the return day of the summons, unless the Court or the Rules allow a shorter period of service.
16 Counsel for the plaintiffs also referred the court to Capesail Nominees Pty Ltd (In Liq) & Another v Ride & Ors [2002] WASC 29 at [5] where Master Bredmeyer held that a party wishing to apply for a final judgment for default in any procedural step other than the failure to file a defence had to file a "chamber summons inter partes".
(Page 8)
- Master Bredmeyer did not go into detail as to the various forms of a judgment in default of a defence as dealt with in O 22 r 2 to 7, as the case of Capesail Nominees (supra) concerned an application for judgment in default of service of a statement of claim.
17 In ACN 076 676 438 Pty Ltd (In Liq) & Anor v A Comms Teledata Pty Ltd & Anor [2000] WASC 214 at [17] Parker J said the following with regard to the setting aside of a judgment in default which has been entered into irregularly:
"It has been long established that where a judgment in default has been entered irregularly, ie without proper compliance with the Rules, or has been obtained in breach of good faith, it will be set aside; Hughes v Justin [1894] 1 QB 667; Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19; Daly v Silley [1960] VR 353. In such a case the Court is not obliged to enquire whether or not there is a good defence on the merits; Anlaby v Praetorius (1888) 20 QBD 764; Alexander v Ajax Insurance Co Ltd [1956] VLR 436; White v Weston [1968] 2 QB 647; Daly v Silley (supra); Acclaim Holdings Pty Ltd v Vlado [1989] 1 WAR 128. The authorities recognise that in some circumstances those statements are to be qualified, as where the irregularity has been waived or results from an accidental omission which can be corrected, eg as to the precise amount for which the judgment is entered; Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Habib Bank Ltd [1998] 4 All ER 753; City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463."
18 Parker J further pointed out that in more recent times the entitlement to have a judgment set aside for irregularity has been qualified in certain instances depending upon the significance and circumstances of the irregularity. For example, where a writ had stated that an appearance had to be entered within eight rather than nine days of service, it was held that the irregularity had not caused any prejudice to the defendant and could therefore be condoned: Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245. Similarly, in National Australia Bank Limited v Meehan, unreported; SCt of Vic Appeal Division; No 8407 of 1993; 24 February 1994, the absence of the number of the proceeding from the service copy of the originating process was held to be merely a technical defect not producing an irregular judgment.
(Page 9)
19 In White v Weston [1968] 2 QB 647 per Russell LJ at 659 and Sachs LJ at 662 it was held that the defendant was entitled to have a default judgment set aside where he had not been duly served with the writ. Russell LJ said that the lack of service amounted to such a fundamental defect that the defendant was entitled "as of right ex debito justitiae" to have the judgment set aside.
In this case the failure to serve the application for a default judgment was a serious omission which was prejudicial to the defendants. It was not just a small slip which could be corrected by a minor adjustment upon the granting of the default judgment. Accordingly, this is a case in which the default judgment should be set aside as of right on the basis of irregularity.
20 It follows that the orders made by Deputy Registrar Hewitt on 19 April 2007 should be set aside.
Claim based on unstamped document
21 Although it is no longer necessary to deal with the second issue regarding the validity of the default judgment, I shall deal with it for the sake of completeness. The defendants raised in their submissions that the default judgment was irregularly entered because the three agreements pleaded in pars 6.1, 6.2 and 6.3 of the statement of claim remained unstamped. The defendants say that the plaintiffs are liable for the stamping of at least the agreements pleaded at pars 6.1 and 6.3 of the statement of claim, as the plaintiffs were the purchasers in respect of each agreement. The plaintiffs have not denied this. However, the plaintiffs say that they are not relying on any of the agreements as valid or effectual, but have merely referred to them for the purpose of having them set aside on the basis of the defendants' misrepresentations.
22 Section 27 of the Stamp Act 1921 provides as follows:
"(1) Except as otherwise provided by this Act, no instrument chargeable with duty and executed in Western Australia … shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed.
(2) …
(Page 10)
- (3) Sections 29 and 30 and this section do not apply to an instrument … pleaded in a pleading filed in any court … on behalf of a party (not being a person who is liable to pay the duty in respect of the instrument) …
(a) in the case where the instrument … is pleaded, if before the pleading is filed in the court, the person
(i) has informed the Commissioner of the name of the person liable to pay the duty in respect of the instrument … ; and
(ii) has lodged –
(I) the instrument or a copy of the instrument
…
as the case requires, with the Commissioner."
24 Sub-section 27(1) provides that no unstamped instrument shall "be pleaded or given evidence". On first impression it would therefore appear that the plaintiffs cannot rely on the agreements pleaded in pars 6.1, 6.2 and 6.3 of the statement of claim even if the reliance is limited to pleading the agreements in order to have the court rule them voidable by reason of the misrepresentations made by the defendants. However, in Richlaw Pty Ltd and Clayhill Holdings Pty Ltd & Ors v Blackburne, unreported; FCt SCt of WA; Library No 980242; 7 May 1988 at 9 – 10, Wheeler J (with whom Anderson J agreed) came to the conclusion, in reliance on Peddie v Stein (1988) NSW ConvR 55-379, unreported, SCt of NSW, 26 March 1987, that where a party refers to a document in a pleading, not in order to set it up as valid and effectual for any purpose but only in order to have it wholly set aside, the document may be referred to for that purpose notwithstanding that it is not stamped. In the Richlaw case the defence alleged that a deed pursuant to which the plaintiffs were claiming a sum of money was defective and unconscionable and should be set aside. Wheeler J held that leave should be granted to the defendant to appeal from the Master's decision to strike
(Page 11)
- out the defence on the basis that the defendant had relied on a document which was not stamped.
25 The factual situation in this case is very similar to that considered by the Full Court of the Supreme Court of WA in the Richlaw case. In Peddie v Stein, (supra), at p 10 Young J said in reference to the unstamped document and relying on Mason v Motor Traction Co Ltd[1905] 1 Ch 419 that it would be "quite idle to have it stamped and then to get a refund". This is also the case as regards the agreements pleaded at pars 6.1, 6.2 and 6.3 of the statement of claim.
26 The defendants referred to another Full Court decision in Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128 at 134 - 135. In that case the plaintiff's claim was endorsed on a writ of summons and it relied on a written agreement for payment of a particular sum. The agreement was unstamped. The plaintiffs argued that as they had not pleaded the agreement in a pleading but only referred to it in a writ of summons, s 27(1) of the Stamp Act1921 did not apply. Kennedy J (with whom Wallace and Pidgeon JJ agreed) held that even though the agreement had not as yet been pleaded, the plaintiff would have been prevented from pleading the agreement once an appearance had been filed and would have been unable to lead any admissible evidence as to the agreement. Accordingly, s 27(1) of the Stamp Act was applicable and the default judgment was set aside. In the Acclaim Holdings case the plaintiff relied on the unstamped agreement as a valid and effectual document. The facts of that case were therefore different to the facts of the present case.
27 Accordingly, but for the fact that the default judgment was entered into irregularly because of the absence of service of the application for default judgment, I would have allowed the plaintiffs to refer to the unstamped agreement and would not have set aside the default judgment for that reason.
No conferral pursuant to O 59 r 9
28 Counsel for the plaintiffs argued that the defendants should not be entitled to any order on their original application to set aside the default judgment because the defendants did not comply with O 59 r 9(1) of the Rules of the Supreme Court 1971. Order 59 r 9 provides as follows:
"(1) No order shall be made on an application in chambers unless the application was filed with a memorandum stating -
- (a) that the parties have conferred to try to resolve the matters giving rise to the application; and
(b) the matters that remain in issue between the parties.
- (2) The Court may waive the operation of paragraph (1) in a case of urgency or for other good reasons."
29 Counsel for the plaintiffs referred the court to the decision of Martin CJ in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors [2006] WASC 161 at [3] – [5]. Martin CJ said that he would favour an approach to the construction of the rule which meant that it had not been substantively complied with unless and until legal representatives of the parties, with authority to resolve the particular interlocutory dispute in question, had orally conferred in respect of the substantive issues in relation to the dispute either by telephone or by meeting face to face.
30 It is not disputed that the defendants' legal representatives did not contact the plaintiffs' legal representatives prior to bringing the application to set aside the default judgment. However, the defendants set out in their further submissions filed on 10 April 2008 that on 13 November 2007 the plaintiffs filed and served on the defendants' solicitors a creditor's statutory demand for payment of debt in respect of the amount due under the default judgment plus interest and costs. By letter dated 20 November 2007 the plaintiffs' solicitors advised the defendants' solicitors that unless payment of the amount of $84,591.18 stated in the statutory demand was received by 4 December 2007 they were instructed to commence winding up proceedings of the first defendant. On 4 December 2007 the defendants filed an application in the Supreme Court to set aside the creditor's statutory demand for payment of the debt. On the same date they filed the application by chamber summons in the District Court to set aside the default judgment. The statutory demand was set aside on 17 December by consent between the parties.
31 The defendants have not furnished any reason why there could not have been a conferral between the parties between 13 November 2007 (when the statutory demand was received) and 4 December 2007 (when the application to set aside the default judgment was filed) other than that the chamber summons had to be filed as a matter of urgency. However, the defendants state in their submissions that the plaintiffs had made their position clear to the defendants by the filing and serving of the
(Page 13)
- statutory demand and that a conferral would only have occasioned costs which would have served no useful purpose.
32 In my view these are not adequate reasons as to why the defendants' solicitors could not have picked up the phone and contacted the plaintiffs' solicitors to ask them about their attitude to the default judgment being set aside. However, in light of the fact that the plaintiffs had indicated that they meant business by the filing of the statutory demand, it is highly unlikely that any such conferral would have had the outcome of the plaintiffs conceding the irregularity of the default judgment at that stage. It appears that the initial attitude of the plaintiffs' solicitors was that the default judgment had been regularly obtained.
33 In light of the these circumstances and the apparent lack of prejudice to the plaintiffs arising from the failure to confer I am prepared to waive the operation of O 59 r 9 in this particular case and to allow the defendants the order to set aside the default judgment in spite of their lack of compliance with O 59 r 9. There is also an argument that after the application to set aside the default judgment had been deemed to be an appeal, O 59 r 9 no longer applied, as this is limited to the bringing of an application in chambers and does not apply to appeals.
Reasons for delay and merits of the defence
34 By reason of the fact that I have come to the conclusion that the default judgment should be set aside for irregularity and as of right, it is not necessary to decide whether the application to set aside the default judgment would have succeeded and whether the defendants have provided a proper explanation for the failure to file a defence and have disclosed a credible defence on the merits.
35 In any event it appears to me that there is no longer an application before this Court to set aside the default judgment. The application to set aside the default judgment which was filed by the defendants on 4 December 2007 was deemed to be an appeal pursuant to the orders made by Deputy Registrar Hewitt on 20 December 2007.
36 An appeal from a Registrar is a hearing de novo and the Judge hearing the appeal may make the decision afresh on the material and evidence then before the court. However, in deciding the appeal the court can in my view only come to a conclusion whether the default judgment should have been granted or whether it should not have been granted by reason of irregularity, because this was the issue which was before Deputy Registrar Hewitt. It does not fall within the ambit of an appeal to
(Page 14)
- decide whether the default judgment should be set aside pursuant to O 13 r 10 of the Rules of the Supreme Court 1971. That order provides that a court may, on such terms as it thinks just, set aside or vary any judgment entered into in pursuance of O 13.
37 In my view, if I had upheld the default judgment it would have been necessary for the defendants to file a fresh chamber summons asking for the setting aside of the default judgment. However, this issue does not arise because the default judgment is to be set aside for irregularity.
Plaintiffs' claim and illegality
38 Another issue which does not arise at this stage and was not mentioned by either party is whether the plaintiffs' claim is tainted by illegality. This issue could possibly arise, because the statement of claim essentially seems to plead that the agreements in pars 6.1, 6.2 and 6.3 were sham agreements entered into in order to comply with the requirements of the Department of Immigration and Multicultural Affairs for permanent residence status for the first—named plaintiff. In my view this issue does not affect the finding that the default judgment has been entered into irregularly and should be set aside. It is therefore not necessary for me to express a view at this stage whether there is any illegality which affects the plaintiffs' claim for damages pursuant to s 52 of the Trade Practices Act 1974 and their claim to have the agreements declared void and of no effect.
Costs of the application
39 I have set out the background of how the application was brought and what issues were raised by the parties in their submissions and on both hearing dates, as this is relevant to the matter of costs.
40 The parties have addressed me on the issue of costs. Counsel for the plaintiffs submitted that the plaintiffs should have the costs of the first hearing before me on 14 April 2008 because the defendants had not adequately set out the merits of their defence in their affidavits and the court granted them an indulgence in allowing them to file a further affidavit.
41 At the end of the day the defendants succeeded in their application to have the default judgment set aside or, as the application is now deemed, in their appeal. However, a large amount of time was spent at both hearings dealing with the lack of relevant information going to the merits of the defendants' defence set out in the defendants' affidavits.
(Page 15)
- The affidavits were lengthy, repetitive and largely set out irrelevant legal argument. Further, the issue of the default judgment being irregular was not raised by the defendants or dealt with in their submissions.
42 On the other hand, whereas it was counsel for the plaintiffs who quite properly raised of his own accord the argument that O 22 r 3 is only applicable where the plaintiffs' claim is for unliquidated damages only, this was only pointed out at the second hearing and after the defendants' further affidavits had been dealt with.
43 In all the circumstances it seems to me just to make an order that each party pay its own costs.
44 I have already made an order that any costs occasioned by the filing of the defendants' additional affidavits be paid by the defendants forthwith. In light of what I have set out regarding the two hearings and what was raised at each and the general costs order that I have made, it seems to me that a just direction would be that the wasted costs to be paid by the defendants forthwith be the costs of the plaintiffs having to read the additional affidavits and prepare submissions in that regard and half of the plaintiffs' costs of the second hearing on 29 August 2008.
0
3
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