DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2001] WASC 148

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 148
Case No:	CIV:1098/2001	Heard:	8 JUNE 2001
Coram:	MASTER SANDERSON	Delivered:	12/06/01
No of pages:	7	Judgment Part:	1 of 1
Result:	Judgment set aside
PDF Version

Parties:	DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178) A GONINAN & CO LTD (ACN 000 003 136)
Catchwords:	Practice and procedure Application to set aside default judgment regularly entered Turns on own facts
Legislation:	Nil
Case References:	Palmer v Prince [1980] WAR 61 Astley v Austrust (1999) 161 ALR 155 Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246 Johnsen v Duks [1963] NSWR 730 Lombank Ltd v Cook [1962] 1 WLR 1133 Parker v Transfield Pty Ltd [2000] WASCA 382

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2001] WASC 148 CORAM : MASTER SANDERSON HEARD : 8 JUNE 2001 DELIVERED : 12 JUNE 2001 FILE NO/S : CIV 1098 of 2001 BETWEEN : DIRECT ENGINEERING SERVICES PTY LTD (ACN 008 700 178)

Plaintiff

AND

A GONINAN & CO LTD (ACN 000 003 136)

Defendant

Catchwords:

Practice and procedure - Application to set aside default judgment regularly entered - Turns on own facts

Legislation:

Nil

Result:

Judgment set aside

(Page 2)

Representation:

Counsel:

Plaintiff : Mr L F A Nixon

Defendant : Ms P E Cahill

Solicitors:

Plaintiff : Clayton Utz

Defendant : Jackson McDonald

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

Palmer v Prince [1980] WAR 61

Case(s) also cited:

Astley v Austrust (1999) 161 ALR 155
Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246
Johnsen v Duks [1963] NSWR 730
Lombank Ltd v Cook [1962] 1 WLR 1133
Parker v Transfield Pty Ltd [2000] WASCA 382

(Page 3)

1 MASTER SANDERSON: This is the defendant's application to set aside judgment entered in default of appearance. The judgment was regularly entered. Both parties accepted that in order for the judgment to be set aside the defendant must establish by affidavit evidence that it has a defence on the merits and it must explain the failure to comply with the rules: see Palmer v Prince [1980] WAR 61 at 62.

2 It is convenient to deal first with the defendant's explanation for non-compliance with the rules. The relevant evidence is to be found in an affidavit of Philip Vane Lansell sworn 4 April 2001. The position can be summarised as follows. In late April 2000 Mr Lansell received a letter from HIH Insurance Limited ("HIH") seeking legal advice in relation to a claim made upon the defendant by the plaintiff. HIH was the public liability insurer of the defendant. In August 2000 Mr Lansell instructed insurance assessors to further investigate the claim. Upon completion of those investigations it was Mr Lansell's intention to provide HIH with an opinion on indemnity, liability and quantum with respect to any…

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: [2001] WASC 148
Decision Date

CaseChat Overview and Summary

Direct Engineering Services Pty Ltd (the plaintiff) commenced proceedings against A Goninan & Co Ltd (the defendant) seeking damages for an alleged breach of contract. The defendant applied to set aside a default judgment that had been entered against it. The primary issue for the court was whether the defendant had provided a sufficient explanation for its failure to enter an appearance and whether it had an arguable defence on the merits. The court found that the defendant's explanation for its failure to enter an appearance was satisfactory. The court noted that the defendant had received the writ from the plaintiff and had passed it on to its insurer, HIH Insurance Limited, which was presumably responsible for the conduct of the litigation. The court held that the defendant's explanation for its failure to enter an appearance was sufficient to set aside the default judgment. The court also found that the defendant had an arguable defence on the merits. The court held that the circumstances in which the fire occurred gave rise to a real question as to whether there had been negligence or breach of contract on the part of the defendant.

The court ordered that the default judgment be set aside and that the parties be heard as to the precise form of order and as to costs. The court did not make any findings on the merits of the case, and the case was to proceed to trial on the substantive issues.

Orders