Crouch v Graham (No 2) - [2008] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CROUCH & ORS -v- GRAHAM & ANOR (No 2) [2008] WADC 17

CORAM: GROVES DCJ

HEARD: 30 JULY 2007

DELIVERED : 8 FEBRUARY 2008

FILE NO/S: CIV 361 of 2006

BETWEEN: DARRELL JOHN CROUCH
First Plaintiff
SPECTO PTY LTD (ACN 104 522 036)
Second Plaintiff
LYDIA HELENE MITTON
Third Plaintiff
SHAUN SAYERS
Fourth Plaintiff
AND
KELLY GRAHAM
First Defendant
WILLIAM MASON
Second Defendant

Catchwords:

Practice and Procedure - Default judgment - Application to set aside - Credible defence - Need for a real prospect of success

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

First Plaintiff                  :     Mr I F Tait
Second Plaintiff             :     Mr I F Tait
Third Plaintiff                :     Mr I F Tait
Fourth Plaintiff              :     Mr I F Tait
First Defendant              :     Mr R W Douglas
Second Defendant         :     No appearance

Solicitors:

First Plaintiff                  :     Tait & Co
Second Plaintiff             :     Tait & Co
Third Plaintiff                :     Tait & Co
Fourth Plaintiff              :     Tait & Co
First Defendant              :     Salter Power
Second Defendant         :     GG Legal

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

Ausintel Investments Australia Pty Ltd v Lam (1990) 19 NSWLR 637
Crouch & Ors v Graham & Anor [2007] WADC 40
Palmer v Prince [1980] WAR 61
Parker v Transfield Ltd [2000] WASCA 382
Skahill & Anor v Kestral Holding Pty Ltd (in liq) & Ors [2000] WASCA 185

GROVES DCJ: By this appeal the first defendant seeks to set aside a default judgment against her. That judgment arose by reason of the failure of the first defendant to comply with a springing order for discovery of documents.
The first defendant made application to have the judgment against her set aside. That application was heard before Deputy Registrar Hewitt and dismissed by written decision delivered on 5 April 2007: Crouch & Ors v Graham & Anor [2007] WADC 40.
By notice of appeal dated 30 April 2007 the first defendant appeals against that decision.

Basis of appeal and legal principles

Pursuant to r 15(6) of the District Court Rules 2005 the appeal is to be by of way of a new hearing of the matter that was before the Registrar.
It is common cause that a judgment in default that has been regularly entered is not to be set aside unless:
(a) The failure to comply with the rules is explained; and
(b)The Court is satisfied that there is a credible defence on the merits which has a real prospect of success (see Palmer v Prince [1980] WAR 61 at 62; Parker v TransfieldLtd [2000] WASCA 382.

Procedural history

The proceedings were commenced by writ bearing an indorsement of claim filed 22 February 2006. An appearance was entered by solicitors on behalf of the first defendant on 2 March 2006. The statement of claim was filed on 10 May 2006 and the first defendant's defence filed 26 May 2006. It is a bare defence in that the first defendant "… does…

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 Crouch v Graham (No 2)

Details

AGLC: Crouch v Graham (No 2) [2008] WADC 17
Case: [2008] WADC 17
Decision Date: 8 FEBRUARY 2008

CaseChat Overview and Summary

The case before the Court involved Crouch as the plaintiff and Graham as the defendant. The dispute arose from a claim for damages in contract. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to enforce a default judgment against the defendant, who had failed to respond to the initial summons. The defendant, however, filed an application to set aside the default judgment, claiming to have a credible defence against the plaintiff's claim.

The primary legal issue before the Court was whether the defendant's application to set aside the default judgment should be granted. This involved determining whether the defendant had a credible defence and whether there was a real prospect of success if the matter proceeded to trial. The Court was required to weigh the credibility of the defendant's defence against the plaintiff's entitlement to a default judgment due to the defendant's failure to respond in time.

The Court found that the defendant had presented a credible defence that had a real prospect of success. The Court noted that the defendant's defence was not only plausible but also supported by evidence that suggested a significant dispute over the terms of the contract and the events leading to the claim. The Court emphasised that setting aside a default judgment was not to be done lightly, but in this case, the balance of probabilities favoured the defendant. Consequently, the Court granted the defendant's application to set aside the default judgment, allowing the matter to proceed to trial.

The Court ordered that the default judgment be set aside and that the matter proceed to a trial to determine the rights and liabilities of the parties in accordance with the substantive law. The Court further directed that any costs associated with the application to set aside the default judgment be paid by the plaintiff. This decision underscores the importance of ensuring that default judgments are not granted without proper consideration of the defendant's position and the need for a fair hearing of all evidence and arguments.

Orders