Clauson v DCH Legal Group - [2004] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CLAUSON -v- DCH LEGAL GROUP [2004] WADC 27

CORAM: MULLER DCJ

HEARD: 23 FEBRUARY 2004

DELIVERED : 27 FEBRUARY 2004

FILE NO/S: CIV 1295 of 2003

BETWEEN: FRANCES ANN CLAUSON
Appellant/Defendant
AND
DCH LEGAL GROUP
Respondent/Plaintiff

Catchwords:

Appeal against Deputy Registrar's decision dismissing defendant's application to set aside judgment in default of appearance to defend - Whether defence on the merits available to defendant

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant/Defendant : In person
Respondent/Plaintiff : Mr B M C N de Lestang

Solicitors:

Appellant/Defendant : In person
Respondent/Plaintiff : Benjamin & de Lestang

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

Palmer v Prince [1980] WAR 61

Case(s) also cited:

Nil

MULLER DCJ: This is an appeal against a decision of the Deputy Registrar dismissing an application by the appellant/defendant to set aside a judgment entered in default of appearance to a writ of summons issued out of this Court by the respondent/plaintiff and served on the defendant on 16 June 2003. Following service the defendant failed to enter an appearance and judgment in default of such appearance was entered against her on 10 July 2003 in an amount of $43,752.94.
The appeal by the defendant is out of time and the leave of this Court is required for her to pursue the appeal.
The plaintiff is a firm of solicitors and the defendant was a client of the plaintiff. In its statement of claim the plaintiff alleges that on 31 January 2001 the defendant entered into a written agreement with the plaintiff retaining the plaintiff to represent her in proceedings in the Family Court. It was alleged that the plaintiff did legal work for the defendant and incurred expenses on her behalf in the form of disbursements to third parties. The statement of claim further alleged that the defendant was billed $62,909.52 between November 2001 and during 2002 and has paid the plaintiff $25,119.24 in reduction of her account with the plaintiff. The amount claimed by the plaintiff in its writ of summons represented the balance of the professional legal fees said to have been owed by the defendant including interest at the agreed rate and costs. Following the entry of the default judgment on 10 July 2003 the defendant applied to have the judgment set aside and filed an affidavit dated 3 September 2003 in which she acknowledged having failed to enter an appearance but claimed she did not know she was required to do so and also asserted that she had a good defence to the plaintiff's claim.
For the defendant to succeed in this appeal she must satisfy the Court that she has a defence on the merits. The position was explained by the Full Court in Palmer v Prince [1980] WAR 61 at 62 where Jackson CJ said:
"The general rule is that where a judgment has been regularly entered, it is not to be set aside unless the court is satisfied that…

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] WADC 27
Decision Date: 27 FEBRUARY 2004

CaseChat Overview and Summary

Clauson v DCH Legal Group was an appeal by the defendant, DCH Legal Group, against a decision of the Deputy Registrar dismissing their application to set aside a judgment in default of appearance to defend. The plaintiff, Clauson, had initiated proceedings against DCH Legal Group, and a default judgment was entered when DCH Legal Group failed to appear. DCH Legal Group subsequently sought to set aside the default judgment, arguing that a defence on the merits was available to them.

The primary legal issue before the court was whether a defence on the merits was available to DCH Legal Group despite their failure to appear in the proceedings. DCH Legal Group contended that they had a valid defence which, if considered, could potentially have resulted in the proceedings being dismissed. The court was required to determine the circumstances under which a default judgment could be set aside and whether the availability of a defence on the merits was a sufficient ground for such relief.

The court considered the principles governing the setting aside of default judgments. It noted that while a default judgment could generally be set aside if the defendant had a real prospect of successfully defending the claim, the defendant must demonstrate that there was a valid defence on the merits and that setting aside the judgment would not result in substantial injustice to the plaintiff. The court further examined the evidence and submissions presented by DCH Legal Group to assess whether they had a valid defence that, if considered, would likely result in the proceedings being dismissed. The court concluded that the defendant had not demonstrated a real prospect of successfully defending the claim on the merits. Consequently, the appeal was dismissed, and the decision of the Deputy Registrar was upheld.

Orders