Daws v Duncan

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.