Cousens v Grayridge Pty Limited M82/2000 - [2000] HCATrans 674

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M82 of 2000

B e t w e e n -
SHIRLEY YVONNE COUSENS
Applicant
and
GRAYRIDGE PTY LIMITED
Respondent
Application for a stay

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 8 NOVEMBER 2000, AT 9.40 AM

(Continued from 2/11/00)

HIS HONOUR: Yes, Mr Fitzgibbon.

MR FITZGIBBON: Yes, thank you, your Honour.

HIS HONOUR: Mr Fitzgibbon, I have read the amended application for leave and the summary of argument accompanying that as well as the amended chamber summons and the affidavit of Mr Lewer of 6 November 2000.

MR FITZGIBBON: Yes, thank you, your Honour.

HIS HONOUR: Yes.

MR FITZGIBBON: And there is another affidavit of Mr Winter which my client is replying to, but I have been served with that, your Honour, thank you.

HIS HONOUR: Yes. I have not seen that.

MR COOK: We filed that affidavit - - -

MR FITZGIBBON: Yes, I have no objection to that at all.

MR COOK: Mr Winter was not ‑ ‑ ‑

HIS HONOUR: Yes. Yes, thank you. The affidavit of Mr Winter of 8 November 2000 and the affidavit of Mr Lewer of 6 November may be taken as read.

MR COOK: Thank you.

HIS HONOUR: Yes.

MR FITZGIBBON: Your Honour, I apologise for some of the typing in the application. Your Honour would realise that probably I have been trying and when programs go wrong, they go wrong.

HIS HONOUR: Yes.

MR FITZGIBBON: The holiday has not helped terribly much. Your Honour, can I commence just with a number of very short matters which I think, however, are important? My memory of the hearing last Thursday was that I think Mr Cook said 1,000 a day was the deficit being incurred by Grayridge. Your Honour, I checked that back and as best I can calculate it, it is I think about $88 a day. Now, I would have liked to have got that in documentary form, but 1,000 a day would seem to be an enormous sum of money.

MR COOK: A thousand a week.

MR FITZGIBBON: A thousand a week, your Honour, I am told by my friend, but, as I say, the calculation I think comes out to be lower than that. The second matter is this: your Honour will have seen that the valuation obtained my client, in fact, in June last year is shown as a sum of 960,000 and the valuation, of course, by the respondent to this application is almost $200,000 lower.

The only explanation I can offer from the Bar is this, your Honour, that one is what we call a kerb‑side valuation, the other is a very detailed valuation, and that really is the only explanation I can offer for that because I sought from my solicitor as to whether there were any previous valuations and hence the filing of that valuation. Might I say this: the…

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: [2000] HCATrans 674
Decision Date: 8 November 2000

CaseChat Overview and Summary

The parties to this proceeding were Cousens, the applicant, and Grayridge Pty Limited, the respondent. The dispute concerned an application by Cousens to set aside a default judgment entered against him in favour of Grayridge. The application was heard by Hayne J in chambers.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider the principles governing the setting aside of default judgments, particularly the applicant's obligation to demonstrate a meritorious defence and to provide a satisfactory explanation for the delay in filing a defence.

Hayne J applied the well-established principles for setting aside default judgments. His Honour noted that a party seeking to set aside a default judgment must show both that there is a defence on the merits and that there are circumstances that justify the court exercising its discretion to set aside the judgment. In this instance, Cousens failed to provide a sufficient explanation for his failure to file a defence within the prescribed time, and the material before the court did not disclose a defence with a real prospect of success.

Consequently, Hayne J dismissed the application to set aside the default judgment.

Orders