Daws v Duncan - [2001] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAWS -v- DUNCAN [2001] WASC 161

CORAM: TEMPLEMAN J

HEARD: 1 JUNE 2001

DELIVERED : 1 JUNE 2001

PUBLISHED : 21 JUNE 2001

FILE NO/S: CIV 2745 of 2000

BETWEEN: GRAHAM DAWS
Plaintiff
AND
NEVILLE DUNCAN
Defendant

Catchwords:

Practice and procedure - Application to set aside judgment obtained in default of appearance - Rules of the Supreme Court O 13 r 10 - Solicitor's obligations in response to another solicitor's withdrawal of undertaking to accept service - Solicitor's affidavit sworn in support of motion for judgment misleading - Discourteous conduct on part of solicitor - Departure from general rule that a defendant wishing to set aside a judgment must present a credible defence by filing an affidavit setting out facts - Matter referred to Legal Practice Board

Practice and procedure - Costs - Costs awarded against plaintiff on an indemnity basis - Solicitor to show cause why he should not pay costs personally - Rules of the Supreme Court O 66 r 5

Legislation:

Nil

Result:

Judgment set aside
Plaintiff to pay defendant's costs of and incidental to this application on an indemnity basis, to be taxed if not agreed and paid forthwith
Solicitor for plaintiff ordered to show cause why he should not pay costs personally

Representation:

Counsel:

Plaintiff: Mr W Naseem
Defendant: Mr D F Beere

Solicitors:

Plaintiff: Cocks Macnish
Defendant: Beere May & Meyer

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

Nil

Case(s) also cited:

Nil

TEMPLEMAN J: I have an application pursuant to O 13 r 10 to set aside a judgment obtained in default of appearance. The matter arose out of a dispute between the plaintiff and the defendant over the purchase of a horse. A writ was issued on 20 December 2000 which contained an indorsement of claim. On the same day an amended writ was issued in which the indorsement was amended to change the name of the horse.
The indorsement disclosed that the plaintiff's claim was for specific performance of a contract said to have been made between the plaintiff and the defendant on or about 22 September 2000, for the sale by the defendant and purchase by the plaintiff of a brood mare named "No Secret" for the sum of $25,000. In the alternative there was a claim for damages for breach of the agreement by the defendant and for misrepresentation including damages pursuant to s 52 of the Trade Practices Act.
The plaintiff's solicitors are and were Cocks Macnish. The defendant's solicitors are and were Beere May and Meyer in Margaret River. Mr Cocks had the conduct of the matter on behalf of the plaintiff. Mr Beere had the conduct of the matter on behalf of the defendant.
There was some correspondence between the solicitors about the service of the writ. On 20 December 2000 Mr Beere wrote to Cocks Macnish in these terms:
"I will accept service of any proceedings subject to service being at our Margaret River office…

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 Daws v Duncan

Details

AGLC: Daws v Duncan [2001] WASC 161
Case: [2001] WASC 161
Decision Date

CaseChat Overview and Summary

The case of Daws v Duncan involved a dispute between the plaintiff, Graham Daws, and the defendant, Neville Duncan, concerning the purchase of a horse. The matter was heard in the Supreme Court of Western Australia in chambers by Templeman J, who delivered the judgment on June 1, 2001. The primary legal issue in this case was whether the court should set aside a judgment obtained in default of appearance by the defendant, Neville Duncan. This decision hinged on the obligations of the plaintiff's solicitor, Mr Cocks from Cocks Macnish, in responding to the defendant's solicitor's withdrawal of the undertaking to accept service.

The court found that Mr Cocks had acted improperly by not informing the court about the withdrawal of the undertaking to accept service by Mr Beere, the defendant's solicitor, and by exhibiting a misleading letter in support of the motion for judgment. Although the court acknowledged that the withdrawal of the undertaking might have been unjustified, it was still a matter that should have been brought to the court's attention. The court further noted that Mr Cocks should have ensured that the motion for judgment was served on Mr Beere. The court departed from the general rule that a defendant must present a credible defence by filing an affidavit setting out the facts to set aside the judgment, considering the unusual circumstances of the case. The court ordered that the matter be referred to the Legal Practice Board for investigation into the conduct of Mr Cocks.

The final orders of the court were to set aside the judgment obtained in default of appearance and for the plaintiff to pay the defendant's costs of and incidental to the application on an indemnity basis, to be taxed if not agreed and paid forthwith. Additionally, the plaintiff's solicitor, Mr Cocks, was ordered to show cause why he should not pay the costs personally.

Orders