Coffey Mining Pty Ltd v General Nice Resources (Hong Kong) Ltd

[2016] WASC 142

COFFEY MINING PTY LTD -v- GENERAL NICE RESOURCES (HONG KONG) LTD [2016] WASC 142

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 142
Published:	06/05/2016
Case No:	CIV:2864/2015	Heard:	13 APRIL 2016
Coram:	MASTER SANDERSON	Delivered:	5/05/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Judgment set aside
Category:	B
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Parties:	COFFEY MINING PTY LTD GENERAL NICE RESOURCES (HONG KONG) LTD
Catchwords:	Application to set aside default judgment Turns on own facts
Legislation:	Nil
Case References:	Starrs v Retravision (WA) Ltd [2012] WASCA 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COFFEY MINING PTY LTD -v- GENERAL NICE RESOURCES (HONG KONG) LTD [2016] WASC 142 CORAM : MASTER SANDERSON HEARD : 13 APRIL 2016 DELIVERED : 5 MAY 2016 PUBLISHED : 6 MAY 2016 FILE NO/S : CIV 2864 of 2015 BETWEEN : COFFEY MINING PTY LTD

Plaintiff

AND

GENERAL NICE RESOURCES (HONG KONG) LTD
Defendant

Catchwords:

Application to set aside default judgment - Turns on own facts

Legislation:

Nil

Result:

Judgment set aside

Category: B

Representation:

Counsel:

Plaintiff : Mr M F Holler
Defendant : Mr A D McDonald

Solicitors:

Plaintiff : Norton Rose Fulbright Australia
Defendant : Pragma Legal

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

Starrs v Retravision (WA) Ltd [2012] WASCA 67



1 MASTER SANDERSON: This is the defendant's application to set aside judgment entered in default of appearance. Judgment was entered for an amount of $1,250,000. At the commencement of the hearing counsel for the plaintiff acknowledged that judgment was overstated by an amount of $122,911.95. Relying upon the decision in Starrs v Retravision (WA) Ltd [2012] WASCA 67 [46], counsel applied for leave to amend the judgment. I have concluded the judgment should be set aside in part because the amount of the judgment is overstated. For that reason I have not allowed the amendment as sought by the plaintiff.

2 The relevant facts can be shortly summarised by reference to the indorsement of claim on the writ. It is in the following terms:

1. Pursuant to a Deed of Settlement and Release entered into between the plaintiff, Pluton Resources Limited and the defendant (Deed), the defendant was required to pay the plaintiff the sum of $1,440,184.21 (Settlement Sum).

2. The defendant was required to pay the Settlement Sum to the plaintiff by way of the following instalments:


2.1 $190,184.21 to be paid on or before 31 March 2015 (First Instalment);

2.2 $650,000.00 to be paid on or before 30 April 2015; and

2.3 $600,000.00 to be paid by way of four (4) equal monthly instalments of $150,000.00 commencing 29 May 2015 and ending on or before 31 August 2015


(the instalments in paragraphs 2.2 and 2.3 are collectively, Amount Outstanding).
3. The defendant paid the plaintiff the First Instalment.

4. In breach of the terms of the Deed the defendant failed to pay the plaintiff the Amount Outstanding.

5. In accordance with the terms of the Deed, the plaintiff is entitled to commence proceedings against the defendant for the Amount Outstanding.

3 There were in fact a further three payments made by Pluton Resources Ltd to the plaintiff. On 29 April 2015 there was a payment of $100,000; on 15 May 2015 there was a further payment of $100,000; and on 22 May 2015 there was a payment of $400,000. The plaintiff acknowledges receiving each of those payments. The plaintiff says as at 28 April 2015 there were outstanding invoices due to the plaintiff for post-November work up to the end of March totalling $477,088.05. Furthermore, the agreement reached between the parties on 14 May 2015 was made subsequent to all but the final one of these payments. So what the plaintiff has done is off-set the three payments made against the amount it says was outstanding.

4 It is the defendant's position the $600,000 ought to have been credited to the amount outstanding under the deed. As the written submissions note it is 'inherently improbable that the Defendant or Pluton would pay $600,000 towards a lesser debt in the sum of $477,088.05' [26](c).

5 In my view it is arguable that some credit must be given for this $600,000. In other words I think it is arguable it should have gone to reduce the indebtedness as between the plaintiff and the defendant rather than have been used to pay invoices outstanding as at 28 April 2015. Having reached that conclusion it might be thought the appropriate course was to amend the amount of the judgment in line with the Starrs decision. But the position here is a little more complicated. This is not simply an error in the amount of the default judgment. It represents a fundamental difference between the parties as to what is actually owing. Accordingly I am satisfied that the judgment is irregular and ought be set aside.

6 In applying to set aside the judgment the defendant referred to a number of other alleged irregularities and also maintained it had a defence on the merits. Having concluded the judgment is irregular and ought be set aside I need not deal in detail with any of these matters. It is sufficient if I say that I am not persuaded that any other matters of alleged irregularity were of sufficient moment to warrant the judgment being set aside. As to the claim to a defence on the merits I have not dealt with that issue and I make no specific findings. Those arguments advanced by the defendant may in due course be relevant to a summary judgment application.

7 Accordingly, the default judgment in this matter will be set aside. I will hear the parties as to costs.