Cheok v Papanastassis - [2013] VSC 241

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

No. S CI 2012 05600

LUCILLE CHEOK

Plaintiff

ALEXANDROS PAPANASTASSIS
VASILIKI PAPANASTASSIS

THE MAGISTRATES' COURT OF VICTORIA

First Defendants

Second Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2013
DATE OF JUDGMENT:	10 May 2013
CASE MAY BE CITED AS:	Cheok v Papanastassis
MEDIUM NEUTRAL CITATION:	[2013] VSC 241

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ADMINISTRATIVE LAW – Judicial review – Review of Magistrates’ Court decision – Default judgment – Application to set aside default judgment – Whether default judgment should have been set aside – Application to quash Magistrates’ Court order refusing to set aside judgment – No error of law – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Strauch	Rothwell Lawyers Pty Ltd
For the First Defendants	Mr J. McKay	Kennedy Guy
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

Alexandros and Vasiliki Papanastassis, the first defendants, were the plaintiffs in a Magistrates’ Court proceeding commenced in December 2010. In that proceeding, Lucille Cheok, the plaintiff, was the second defendant. The claim related to a guarantee alleged to have been given by the plaintiff in relation to a lease.

On 17 August 2011, the first defendants obtained default judgment against the plaintiff[1] in the sum of $100,000 together with interest in the amount of $8,116.43 and costs in the amount of $2,879.44.
[1]And also the other defendant to the Magistrates’ Court proceeding (Zhong Liang Peng trading as Sunshine Furnishings).

On 31 May 2012, the plaintiff made application to the Magistrates’ Court to set aside the default judgment. The application to set aside the default judgment was heard by Cure M on 19 July and 3 August 2012. On 3 September 2012, her Honour delivered judgment refusing the plaintiff’s application.

In this proceeding, the plaintiff seeks an order quashing the order made by Cure M on 3 September 2012 and an order returning the application to set aside the default judgment to the Magistrates’ Court for determination in accordance with law.

The plaintiff’s grounds for seeking the order she seeks were encapsulated in paragraph 12 of her amended originating motion:

12.The decision and order of the Magistrates’ Court of Victoria dated 3 September 2012 disclose an error of law, namely:
a.The default judgment dated 17 August 2011 is irregular and ought to be set aside on the basis that it is in excess of the amount of the Claim as stated in the statement of claim therein;
b.The default judgment dated 17 August 2011 is irregular and ought to be set aside on the basis that it was not obtained in accordance with the Magistrates’ Court General Civil Procedure Rules 2010, namely order 21.02(b) which requires such a default judgment to be made only by reference to the Court and not by a registrar;
c.The default judgment dated 17 August 2011 is irregular and ought to be set aside on…

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 Cheok v Papanastassis

Details

AGLC: Cheok v Papanastassis [2013] VSC 241
Case: [2013] VSC 241
Decision Date: 10 May 2013

CaseChat Overview and Summary

The matter of Cheok v Papanastassis involved a dispute concerning the refusal by a Magistrate to set aside a default judgment that had been entered against Cheok. The case was heard in the Supreme Court of New South Wales. Cheok sought to have the Magistrates’ Court decision reviewed, arguing that the Magistrate had erred in not setting aside the default judgment.

The primary legal issues before the court were whether the Magistrate had made an error of law in refusing to set aside the default judgment, and whether the Magistrates’ Court order should be quashed on the basis of such an error. The court had to consider the grounds on which Cheok sought to set aside the default judgment and assess whether there were sufficient grounds to justify the Magistrate’s refusal.

The court found that there was no error of law in the Magistrate’s decision. The court held that the Magistrate had correctly applied the relevant legal principles and had properly considered the evidence and submissions before making the decision. The court found that Cheok had not demonstrated any grounds that would warrant the setting aside of the default judgment, and that the Magistrate's decision was therefore sound. Consequently, the application to quash the Magistrates’ Court order was refused.

No further orders were made by the court.

Orders