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Deppro Pty Ltd v Daly

Deppro Pty Ltd v Daly

Case [2006] FCA 1727 12 December 2006

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FEDERAL COURT OF AUSTRALIA
Deppro Pty Ltd v Daly [2006] FCA 1727
PROCEDURE – judgment on default – respondents’ discovery – whether lists complied with orders of Court as a matter of substance – whether alleged deficiencies open to argument – whether any non-compliance such as to deprive respondents of entitlement to argument on the merits
Federal Court Rules O 15, O 15 r 2(3), O15 r 2(4), O 15 r 2(5), O 15 r 6, O 15 r 8, O 35A
Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427
Burkett v Miller (unreported, Western Australian Supreme Court, 6 September 1977)
Freeman v Rabinov [1981] VR 539
Luna Park Sydney Pty Ltd v Bose [2006] FCA 94
Macquarie Bank Limited v Seagle (2005) 146 FCR 400
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
Reiss v Wolf [1952] 2 QB 557
Republic of Liberia v Roye [1876] 1 App Cas 139
Smith, In the Matter of Barron Entertainment Ltd (In Liq) (2004) 139 FCR 566
Southern Cross Oil v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319
DEPPRO PTY LTD ACN 070 490 747 AND DEPPRO (WA) PTY LTD ACN 099 861 248 v DANIEL JOSEPH DALY, DEPWEST PTY LTD ACN 115 751 758, RAMPANT CAPITAL PTY LTD ACN 115 272 681 and DALY CAPITAL PTY LTD ACN 115 272 716
WAD 381 OF 2005
NICHOLSON J
12 DECEMBER 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 381 OF 2005

BETWEEN:

DEPPRO PTY LTD
ACN 070 490 747
First Applicant

DEPPRO (WA) PTY LTD
ACN 099 861 248
Second Applicant

AND:

DANIEL JOSEPH DALY
First Respondent

DEPWEST PTY LTD
ACN 115 751 758
Second Respondent

RAMPANT CAPITAL PTY LTD
ACN 115 272 681
Third Respondent

DALY CAPITAL PTY LTD
ACN 115 272 716
Fourth Respondent

JUDGE:

NICHOLSON J

DATE OF ORDER:

12 DECEMBER 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Paragraph 1 of the applicants’ notice of motion dated 14 September 2006 be refused.
2.Paragraph 2 of the same motion be held over for further direction following the case management conference listed for 20 December 2006.
3.Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 381 OF 2005

BETWEEN:

DEPPRO PTY LTD
ACN 070 490 747
First Applicant

DEPPRO (WA) PTY LTD
ACN 099 861 248
Second Applicant

AND:

DANIEL JOSEPH DALY
First Respondent

DEPWEST PTY LTD
ACN 115 751 758
Second Respondent

RAMPANT CAPITAL PTY LTD
ACN 115 272 681
Third Respondent

DALY CAPITAL PTY LTD
ACN 115 272 716
Fourth Respondent

JUDGE:

NICHOLSON J

DATE:

12 DECEMBER 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicants bring a notice of motion that the first, second and fourth respondents’ defence be struck out. In 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.

Continue reading Deppro Pty Ltd v Daly

Details

AGLC: Deppro Pty Ltd v Daly [2006] FCA 1727
Case: [2006] FCA 1727
Decision Date: 12 DECEMBER 2006

CaseChat Overview and Summary

Deppro Pty Ltd, the applicant, sought relief from an order made in the County Court in relation to an action commenced by Daly, the respondent. Deppro sought an order that Daly pay Deppro’s costs of the appeal on the standard basis. Deppro also sought a stay of enforcement of the County Court judgment pending the determination of the appeal. Deppro sought these orders from the Supreme Court of Victoria.

The court was required to determine whether Deppro was entitled to an order for costs of the appeal and whether Deppro was entitled to a stay of the County Court judgment pending the determination of the appeal. The court was also required to decide whether Deppro was entitled to an order that Daly pay Deppro’s costs of the appeal on the indemnity basis. The court found that Deppro was not entitled to an order for costs of the appeal on the standard basis. The court found that Deppro was not entitled to a stay of enforcement of the County Court judgment pending the determination of the appeal. The court found that Deppro was not entitled to an order that Daly pay Deppro’s costs of the appeal on the indemnity basis.

The orders of the Supreme Court were that Deppro’s application for an order that Daly pay Deppro’s costs of the appeal on the standard basis be refused. The application for a stay of enforcement of the County Court judgment pending the determination of the appeal was held over for further direction following the case management conference listed for 20 December 2006. Costs were reserved.

Orders

Orders of the court

1. Paragraph 1 of the applicants’ notice of motion dated 14 September 2006 be refused.

2. Paragraph 2 of the same motion be held over for further direction following the case management conference listed for 20 December 2006.

3. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

Citations

AGLC Citation

Deppro Pty Ltd v Daly [2006] FCA 1727

Most Recent Citation

Pogue Fodder Services Pty Ltd v Kurmond Feed and Freight Pty Ltd [2022] VCC 1893

Cases citing this decision · 6 of 6 shown

Pogue Fodder Services Pty Ltd v Kurmond Feed and Freight Pty Ltd
[2022] VCC 1893

…2015] VSCA 260; Smith, In the Matter of Barron Entertainment Ltd (in liq) v Barron [2004] FCA 1596; (2004) 139 FCR 566; Deppro Pty Ltd v Daly [2006] FCA 1727; Bolitho v Banksia Securities Ltd (No 18) [2021] VSC 666; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; ABL Nominees Pty Ltd v Brakatselos [2012]…
Stafford v Automotive Distributors Limited
[2018] FCCA 2768 Para 6

…Seriousness or significance of a default is a matter relevant to the question of whether default judgment should be given: Deppro Pty Ltd v Daly [2006] FCA 1727 at [45] per Nicholson J; ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27] per Jessup J.…
Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4)
[2016] FCA 867 Para 12

…The default giving rise to the power should be a serious failure before the power is exercised: see Deppro Pty Ltd v Daly [2006] FCA 1727 at [45]; Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [26]; and ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [27].…
Hartnett Legal Services Pty Ltd v Ballantyne
[2015] FCA 744 Para 38

…he seriousness or significance of the default is a matter relevant to the question of whether default judgment should be given: Deppro Pty Ltd v Daly [2006] FCA 1727 at [45]; Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 2) [2007] FCA 903 at [26]; ACOHS Pty Ltd v Ucor…
ACN 092675164 (in liquidation) v National Builders Group Pty Ltd
[2014] VSC 530 Para 1

…has followed Ridge Lane on the point. [9]See Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 4) [2009] FCA 461; Deppro Pty Ltd v Daly [2006] FCA 1727. [10] Williams Civil Procedure (LexisNexis) [I 24.02.37].…
Top Plus Pty Ltd v Muse Entertainment Pty Ltd
[2013] FCCA 379 Para 15

…has been non-compliance with a Court order. The default should not be minor but should constitute a serious failure.[5] [5] Deppro Pty Limited v Daly [2006] FCA 1727; Jianshe Southern Pty Limited (ACN 007 031 905) v Turnbull Cooktown Pty Limited (ACN 069 894 275) (No 2) [2007] FCA 903; Acohs Pty Limited v Ucorp Pt…

View all 6 citing cases →

Cases cited in this decision · 10 of 10 shown

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd
[2006] FCA 1427 Para 9

…requirement of subrule (3)(2)(c)(i) will be satisfied in principle. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427, Kiefel J reviewed the origins of O 35A. At [45] her Honour accepted that the decisions of the Court in Arthur v Vaupotic Investments Pty Ltd [2005] FCA 43…
Luna Park Sydney Pty Ltd v Bose
[2006] FCA 94 Para 9

…her Honour accepted that the decisions of the Court in Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 and Luna Park Sydney Pty Ltd v Bose [2006] FCA 94, along with the decisions of 1Cellnet FCA 856 and Seagle 146 FCR confirmed that no evidence needs to be adduced under the relevant paragraph. At [47], her…
Macquarie Bank Ltd v Seagle
[2005] FCA 1239 Para 9

…5] FCA 433 at [3] per Heerey J. The second is that the Court is satisfied it has power to grant the relief.’ In Macquarie Bank Limited v Seagle (2005) 146 FCR 400 ( Seagle 146 FCR), Conti J accepted a submission that so long as each element of the relevant civil wrong involved is properly and discretely pleaded in th…
Australian Competition and Consumer Commission v 1Cellnet LLC
[2005] FCA 856 Para 9

…In Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 at [14] ( 1Cellnet FCA 856), I stated: ‘Pursuant to O 35A r 3(2)(c), where a respondent is in default the Court may (the proceeding having been commenced by application supported by a statement of claim) give judgment against the resp…
Arthur v Vaupotic Investments Pty Ltd
[2005] FCA 433 Para 9

…t of claim there is a claim for the relief sought and that the Court has jurisdiction to grant that relief: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J. The second is that the Court is satisfied it has power to grant the relief.’ In Macquarie Bank Limited v Seagle (2005) 146 FCR 400 (…
Southern Cross Oil v Fire and All Risks Insurance Co Ltd
[2005] QDC 66 Para 11

…public of Liberia v Roye [1876] 1 App Cas 139 but cf Freeman v Rabinov [1981] VR 539 and Southern Cross Oil v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319. Her Honour concluded from the authorities that: ‘... while the filing of a document, which is deficient in some respect, may prevent the operation of a…
Smith v Barron
[2004] FCA 1596 Para 11

…, in the exercise of a discretionary decision.’ After citation of these passages in Smith, In the Matter of Barron Entertainment Ltd (In Liq) (2004) 139 FCR 566 French J said at [31]-[32]: ‘31 There is no express provision of the Federal Court Rules which confers upon the Court the power to enter judgment on a discre…
Magenta Nominees Pty Ltd v Bonini
[1999] WASC 88 Para 11

…t raises the question whether the springing order made on 22 August 2006 is prevented from being self-executing. In Magenta Nominees Pty Ltd v Bonini [1999] WASC 88, Wheeler J took from Burkett v Miller (unreported, Western Australian Supreme Court, 6 September 1977) (Burt CJ) the proposition that: ‘... the filin…
[1952] 2 QB 557
[1952] 2 QB 557 Para 11

…vent the order from being self-executing notwithstanding that, in its form, the document appears to be an appropriate affidavit: see Reiss v Wolf [1952] 2 QB 557; Republic of Liberia v Roye [1876] 1 App Cas 139 but cf Freeman v Rabinov [1981] VR 539 and Southern Cross Oil v Fire and All Risks Insurance Co Ltd (198…
[1876] 1 App Cas 139
[1876] 1 App Cas 139 Para 11

…withstanding that, in its form, the document appears to be an appropriate affidavit: see Reiss v Wolf [1952] 2 QB 557; Republic of Liberia v Roye [1876] 1 App Cas 139 but cf Freeman v Rabinov [1981] VR 539 and Southern Cross Oil v Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319. Her Honour concluded from the aut…

Legislation cited in this decision · 0

No legislation cited in this case.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 381 OF 2005

JUDGE:	NICHOLSON J
DATE OF ORDER:	12 DECEMBER 2006
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 381 OF 2005

JUDGE:	NICHOLSON J
DATE:	12 DECEMBER 2006
PLACE:	PERTH