Edward Rushton Pty Ltd v Deluxe Chemicals Pty Ltd - [2003] NSWLC 7

No judgment structure available for this case.

Local Court of New South Wales

CITATION: Edward Rushton Pty Ltd v Deluxe Chemicals Pty Ltd [2003] NSWLC 7

JURISDICTION: Civil

PARTIES: Edward Rushton Pty Ltd
Deluxe Chemicals Pty Ltd

FILE NUMBER: 336/96

PLACE OF HEARING: Downing Centre Local Court Sydney

DATE OF DECISION:
06/12/2001

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Civil - Procedure - Setting Aside - Judgment

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970
Local Courts (Civil Claims) Rule 1988

CASES CITED: Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503

REPRESENTATION: Mr R Perry for Plaintiff
Mr P Perry for Defendant

ORDERS: Motion to set aside judgment dismissed. The defendant to pay the plaintiff's costs in relation to the matter which I assess in the sum of $750.00. The costs are to be paid within 21 days.

Reasons for Decision

1 The Notice of Motion filed by the defendant in this matter came on for hearing before me on 8 November 2001 when Mr Philip Perry appeared for the applicant/defendant and Mr Richard Perry appeared for the plaintiff/respondent. I propose to refer to the parties as plaintiff and defendant rather than applicant and respondent.

2 The defendant sought the following order:

That the Judgment entered on 14 September 2001 be set aside pursuant to Local Courts (Civil Claims) Rules 1988 Part 21 Rule 2(2).
Consequential orders were sought but there is no need to set them out.

3 This matter has had a most unfortunate history. The subjective matters relied upon by George Chaina-Azar and Rita Chaina-Azar the directors of the defendant company evoke enormous sympathy and compassion. I have found this matter as difficult and worrying as any which I have had to decide.

4 The Statement of Claim was lodged by the plaintiff company direct and sought payment of the sum of $13,455 being the fees charged by the plaintiff for insurance claim preparation services performed for the defendant. The sum of $12,180 related to fees incurred to 31 December 1993 and the sum of $1,275 to fees incurred in 1994. It appears that premises owned by the defendant were destroyed by fire which occurred on 20 June 1993. The plaintiff company was engaged to prepare the insurance claim on behalf of the defendant.

5 The tragic event which has so devastated the lives of Mr & Mrs Chaina-Azar was the death of their son Nathan who died on a hike trip conducted by The Scots College on 24 October 1999 at Urunga Creek, Kangaroo Valley. At the time of his death Nathan was acting as the chaperon for his younger brother Matthew on a father/son hike. At the time Nathan was fifteen years of age. He was the second of the three sons of Mr & Mrs Chaina-Azar. Nathan was acting as chaperon because his father was unable to attend because of business commitments.

6 I have been provided with detailed chronologies by both the plaintiff and the defendant. I propose merely to set out certain matters relating particularly to the dates fixed for hearing.

7 I refer to the following matters:

20 November 1998 - Hearing of Notice of Motion filed by defendant. No appearance of defendant. Defence struck out.

17 December 1998 - Judgement in default entered in favour of plaintiff.

26 February 1999 - Judgment set aside by consent.

15 December 1999 - Matter set down for hearing 29 March 2000.

10 March 2000 - Hearing date of 29 March 2000 vacated. Defendant to pay plaintiff's costs.

7 June 2000 - Matter fixed for hearing 20 November 2000.

15 November 2000 - Notice of Motion by defendant hearing dated of 20 November 2000 vacated. Matter set down for hearing 4 June 2001.

15 March 2001 - Hearing date of 4 June 2001 vacated.

9 April 2001 - Matter set down for hearing on 14 September 2001.

16 August 2001 - Notice of Motion by defendant to vacate hearing date of 14 September 2001 heard. Application dismissed. Matter to proceed on 14 September 2001.

8 Judgment was entered for $13,455 plus interest to be calculated by the Registrar. Costs were assessed at $25,000.

9 I note from a reading of the file and the plaintiff's and defendants chronology that on at least seven separate occasions a costs order in relation to an application before the Court was made in favour of the plaintiff.

10 Prior to the matter being first set down for hearing, the matter was in for callover on an extraordinary number of times as follows:

11 In relation to each of the following hearing dates an application for the vacation of the hearing dates was made by the defendant and was successful;

20 November 2000
4 June 2001

NOTICE OF MOTION 16 AUGUST 2001

12 The defendants made an application to vacate the hearing date of 14 September which was heard by Magistrate Garbett on 16 August 20001. The Magistrate refused to vacate the hearing date and also refused to reinstate the Cross Claim of the defendant.

13 In support of the motion for the vacation of the hearing date of 14 September 2001 the defendants relied upon an affidavit of Jason Arraj, Solicitor. I propose to set out the terms of his affidavit which was in the following form;

'1. I am a solicitor of Arraj Lawyers acting for the defendants and am familiar with the subject matter of the within proceedings.

2. On 9 April 2001 these proceeding were listed for callover, where the Registrar ordered amongst other things that the matter be listed for hearing on 14 September 2001.

3. This date was set on the basis that the coronial inquest into the death of Mr & Mrs Chaina's son would have been finalised by that date.

4. The defendant's principal witnesses, Mr & Mrs Chaina are unable to attend the hearing date set for 14 September 2001 on medical grounds as well as that they are likely to be involved in an inquest into the death of their son.

5. The inquest into the death of Nathan Chaina commenced on 20 May 2001 has now been adjourned for further hearing until September 2001.

7. I have also made enquiries with Mallesons Stephen Jaques Solicitors who have conduct of the coronial inquest on behalf of M & Mrs Chaina. These enquiries have revealed that the inquest is to resume in September, causing more disruption to Mr & Mrs Chaina. Annexed hereto and marked with the letter 'B' is a copy of the letter from Mallesons Stephen Jaques Solicitors.

8. I am informed by Mr Danny Arraj that on or about 20 June 2001, he had a telephone discussion with Mr Frank Deane, the solicitor for the plaintiff and foreshadowed the need to bring a Notice of Motion to vacate the hearing date, since the coronial inquest had been adjourned until September 2001.

9. Since June 2001, the solicitors for the parties have entered into settlement negotiations with a view to resolving all matters in dispute between the parties.

10. The evidence and presence of Mr & Mrs Chaina at the hearing of these proceedings is vital to the defendant's case and would otherwise cause prejudice to the defendant's claims.

9. Accordingly, I respectfully ask that the Court again grant the relief sought in the within Notice of Motion and regret any inconvenience caused to the Court.

14 I set out in full the medical report of Dr Chris Wever dated 19 June 2001, Annexure A to the Affidavit as follows;

'As you are aware I have been treating Rita and George Chaina since the tragic loss of their son eighteen months previously. Both have significant psychological disturbances with Mr George Chaina having on-going depression and panic attacks, which have prevented him from returning to full time employment and causing significant morbidity. Mrs Rita Chaina has suffered from profound depression and this has only partially responded to treatments including medication.

Over the last four weeks there has been the Coronial Inquiry into their son's death which has involved both parents attending Court on a daily basis and being actively involved in this whole process in an attempt to find an explanation for their son's death. This process has been extremely demanding on both of them and is still currently unfinished with an adjournment till September planned. As a result of their involvement in the Coronial Inquiry there has been resurgence of symptoms.

I am aware that they are required to attend to some legal matters but at present I feel that neither parent is sufficiently well from a psychological sense to attend Court and to attend to such a process. I would estimate that both would be medically unfit to attend Court for a further six months from the date of writing this letter. I continue to see them twice weekly in ongoing therapy.'

15 I set out the letter from Mallesons Stephen Jaques to Arraj & Associates dated 19 June 2001, Annexure B to the affidavit as follows;

'We act for Mr and Mrs George and Rita Chaina for the purpose of a Coronial Inquest into the death of their son, Nathan.

We confirm that the Inquest is currently before Deputy State Coroner Jan Stevenson but has been adjourned until 3 September 2001.

The Inquest completed four weeks of hearing on Friday, 15 June 2001. It is anticipated that the remaining evidence will be completed by 7 September 2001, with a further week (17-21 September) set aside for oral submissions by Interested Persons. The Coroner has indicated that she will make her findings and recommendations on 28 September 2001.

Although Nathan died in October 1999, the coronial inquest has been substantially delayed. The delay has caused our clients considerable distress and concern. It has played havoc with their emotional and physical welfare and has made organisation of their business and professional lives extremely difficult. Our clients are heavily involved in the Inquest. Obviously, the Inquest into the death of their child has taken a prominent position in their lives. Our clients are understandably reluctant to be absent from any part of the hearing.'

16 I have set out the evidence put before the Court by the defendants in support of the motion for the vacation of the hearing date of 14 September 2001 as I believe it is essential when I consider the defendant's present application that I do so bearing in mind the evidence before the Court on the hearing of the application to vacate the hearing date.

17 I turn now to consider the Notice of Motion dated 11 October 2001 seeking the judgment entered on 14 September 2001 be set aside pursuant to Local Courts (Civil Claims) Rule 1988 Part 21 Rule 2(2).

18 At one stage I doubted whether this matter would come within such Rule on the basis that for the defendant to be successful, it would have to seek to have the judgment set aside pursuant to Part 26 Rule 3 which is in the following terms;

'A judgment or order of the Court in any proceedings may, on sufficient cause being shown, be set aside on terms by order of the Court, if the Judgment was given or entered up, or the order was made irregularly, illegally or against good faith.'

19 In this matter it appears Magistrate Dillon did proceed to hear the action and found a verdict in favour of the plaintiff and gave judgment accordingly. I am now satisfied that Part 21 Rule 2(b) which is in the following form does in fact apply;

Sub-section 2 provides as follows;

20 Generally an applicant to have a judgment set aside has to prove two matters;

21 The failure to establish one such ground is a matter to be taken into account with all the other circumstances but the decision has to be reached upon the whole of the relevant material… The existence of a bona fide ground of defence and an adequate explanation for the failure to defend and any delay are the most relevant matters to consider but there may be other matters and a refusal of relief to an applicant is not automatically justified because he has failed to establish one relevant matter, such as an adequate explanation for the failure to defend or for delay; Such a failure must be considered in the light of all the circumstances. The absence of an adequate explanation, particularly if it is coupled with prejudice, may justify the denial of relief but only when considered with the other relevant circumstances of the case (Adams v Kennick Trading (Int) Limited (1986) 4 NSWLR 503 at 506).'

22 In this matter the issue of the existence of a defence on the merits was not argued.

23 The defendant being the applicant in this motion has to satisfactorily explain its failure to attend on the hearing on 14 September 2001. It has to do so in circumstances where a motion seeking to vacate that date was made to the Court and refused. It has to satisfy the Court against a history which shows that this matter had on three previous occasions been set down for hearing and on each occasion had been vacated on the application of the defendant.

24 Mr Philip Perry, Counsel for the defendants in his very helpful oral submissions relied on four arguments as follows;

25 On 16 August on the hearing of the motion to vacate the hearing date the defendant was represented by Mr Chaina-Azar's nephew, Danny Arraj of Arraj Lawyers. The affidavit of Frances Mervyn Deane the solicitor for the plaintiff indicates that following the hearing on 16 August 2001 correspondence took place between his firm and Mr Danny Arraj attempting to settle the matter. On 24 August Mr Arraj forwarded by way of service a report of an expert Geoffrey Gray which was rejected by the solicitors acting for the plaintiff as being out of time. It appears that on 27 August Mr Arraj advised the plaintiff of his intention of ceasing to act and Mr Arraj filed a Notice of Ceasing to Act on 6 September 2001.

26 In her affidavit the director Rita Chaina-Azar deposes as follows;

'By reason of the fact that I was in the midst of the hearing of the Inquest into the death of my son particularised below, I was not in a position to identify and instruct an alternate solicitor to act on the defendant's behalf at the hearing on 14 September 2001.'

27 Mr Perry submitted that the filing of the Notice of Ceasing to Act was a very significant matter for me to take into account. He submitted the directors were incapable of arranging or unable to arrange alternate representation within the short period of time available to them.

28 The defendant relies on the further report of Dr Chris Wever dated 7 September 2001 which is in the following terms;

29 It relies also on the following paragraph from the Directors Solicitors Mallesons Stephen Jaques who were acting in relation to the Inquest.

'The last few days of the Inquest were particularly disturbing. I think it is very important that you discuss with Dr Wever or another counsellor the issues that arose this week, particularly in regard to the post mortem operations. The evidence was extremely disturbing even to a casual observer and I am extremely concerned that this is dealt with professionally.'

30 Mr Perry submitted that the above evidence indicated a significant heightening of the problems faced by the directors arising out of the Inquest into the death of their son.

31 Mr Perry submitted there was significantly stronger evidence before me as to the effect of the proceedings and the death of their son on the directors of the defendant company George & Rita Chaina-Azar, than was before the Court on 16 August as before me there was the detailed affidavit of Rita Chaina-Azar dated 11 October 2001.

32 I propose to set out in full that part of the Affidavit which deals with the psychological and physical harm being paragraphs 32 to 38;

'32. I am severely traumatised and suffer from severe depression arising from the death of my son. I am on high does of anti-depressant medication and am under the care of Dr Wever psychiatrist. I have found it difficult to concentrate and focus on day to day issues and have found it hard to find purpose to get up in the morning and get through a day. My grief and despair has been so total I have found it hard to deal with business issues.

33. I am a pharmacist and a director and shareholder of numerous companies including Deluxe Chemicals Pty Ltd, Jean Pierre Cosmetics Pty Ltd and Proton Technology Pty Ltd. I also own a pharmacy in Double Bay.

34. My husband has been unable to work since Nathan's death. He suffers from deep depression, anxiety and panic attacks, blood pressure, heart problems and depression amongst other things. He is deeply grieving for our son and feels guilt. My husband is presently on anti-depressant drugs and receives professional psychological counselling twice a week from Dr Chris Wever. Annexed and marked "L" is a copy of a letter from Dr Chris Wever, our family psychiatrist dated 7 September 2001. At the time of writing this letter Dr Wever was of the view that our ongoing health issues will disadvantage us in legal proceedings.

37. My son Matthew was unable to attend school for the rest of 1999 and had lengthy absences during 2000 and 2001. He has nightmares and flashbacks as he witnessed his brother being washed away from him and was physically restrained from going in after him. He has trouble sleeping at night and will frequently wake up at 1 or 2am and come into us. He hears the music his brother and he listened to the night before Nathan died over and over in his head and hears Nathan calling him. He will over just "flip out" and yell "make it stop" referring to the noises and music he hears over and over. Matthew also feels tremendous guilt and depression. His schooling has suffered in that he is unable to concentrate and settle into a normal routine to enable him to fully absorb his studies. Matthew is still attending Scots College as they are endeavouring to accommodate his problems and understand the reasons for his problems. By reason of these matters my husband and I have also had to attend counselling with Matthew and try and help him with his problems and his grieving.

38. My son Jean Pierre has also been grieving and suffering from the trauma of the loss of his brother. I have had to arrange persons tutors for the last 12 months to enable him to focus on his Higher School Certificate studies which he recently successfully completed.

33 Mr Perry submitted that I would be satisfied as a result of all of the above matters but particularly those relating to the trauma and stress of the Coronial Inquiry and the significant medical problems suffered by each of the directors that their failure to arrange representation and to be present for the hearing of this matter on 14 September did not exhibit usual rational behaviour and was so extraordinary as can only be explained by reason of their medical condition and the trauma and stress they were under.

34 Mr Perry submitted that as a result of the four heads of argument which he had referred to and the evidence in support of those arguments, I would be satisfied that such evidence establishes sufficient cause for the judgment entered on 14 September 2001 to be set aside.

35 Mr Richard Perry for the plaintiff submitted that the motion filed by the defendant should be dismissed and that I would take into account the following matters;

1. The history of the matter prior to the hearing of the motion on 16 August.

2. The conduct of the directors of the defendant company between 16 August and 14 September 2001.

3. Possible prejudice to plaintiff.

4. Overall considerations of interest of justice.

36 I do not propose to set out his submissions in detail. I propose to incorporate his submissions and the evidence on which the plaintiff relied in the reasons for my decision which I set out hereunder.

37 I acknowledge that the medical evidence tendered on behalf of the directors of the defendant company is very powerful. I have taken into account the dramatic and powerful evidence contained in the Affidavit of Rita Chaina-Azar as to the affects of the loss of their son Nathan has had on her and her husband. The loss of their son Nathan was a tragedy and the circumstances of his loss no doubt caused the directors great anguish and concern and indeed clearly psychological and serious harm to their personal health.

38 I have given full weight to those matters but I have come to the view that the motion brought on behalf of the applicant/defendant company should be dismissed.

39 I take into account the history of the proceedings prior to 16 August 2001. The plaintiff's claim is for work done in 1993 and 1994. The plaintiff's Statement of Claim was filed on 15 January 1996. In my view the plaintiff is entitled to expect that its claim will be heard by the Court within a reasonable period of time. The plaintiff is entitled to expect and the Court must take into account its expectations and interests when considering applications for adjournment and setting timetables for the hearing of the matter.

40 The matter had been set down for hearing on three separate dates prior to the hearing date of 14 September 2001. Each of those three hearing dates were vacated on an application made by the defendant. On the three occasions the basis for the adjournment concerned the death of Nathan Chaina-Azar and the Inquest into his death. Well before his death on 24 October 1999 the defendant had to apply for the striking out of a default judgment which had been entered against it. Subsequently there were many motions before the Court. On at least seven occasions the defendant was ordered to pay the plaintiffs' costs. The defendant frequently failed to comply with orders of the Court in relation to the service of statements and the service of expert reports. The evidence in the Affidavit of Frances Mervyn Deane, the solicitor for the plaintiff, indicates that on many occasions the defendant did not comply with orders for payment of costs made against the defendant.

41 I find that prior to 16 August 2001 the Court properly gave full weight to the problems facing the directors of the defendant company.

42 I have set out in some detail the evidence before the Court on 16 August 2001 seeking the vacation of the hearing date.

43 The Court considered that evidence. The Court took into account the history of the matter. The Court refused to vacate the hearing date of 14 September 2001.

44 I should add that the hearing date of 14 September 2001 was allocated by the Registrar of the Court at a callover on 9 April 2001. The defendant had ample notice of the date for hearing and importantly it would appear the date for hearing was fixed prior to the fixing of the final hearing dates for the Inquest.

45 Counsel for the defendant based great importance on the fact that Danny Arraj, the solicitor representing the defendant filed a Notice of Ceasing to Act dated 6 September 2001. However the defendant did not provide any evidence as to the reasons for Mr Arraj filing the Notice of Ceasing to Act. The inference is clearly open that the solicitor may have so acted because of difficulties in his obtaining instructions from the directors of the defendant company. It may well be that it was their actions, or lack of action, which caused the solicitor so to act. If that be the situation, then it would appear to me that the directors could not rely heavily upon that situation as a changed circumstance said to be of considerable weight when considering the question of sufficient cause, when the solicitor's actions may well have been caused by action or inaction on the part of the directors themselves.

46 Counsel for the defendant relied on the medical report of Dr Wever dated 7 September 2001 which I have previously set out as showing a marked deterioration in the psychological and medical condition of the directors between 16 August 2001 and 14 September 2001.

47 I am not satisfied that there was such deterioration, or if it was, that it was as severe as the doctor or Rita and George Chaina-Azar would ask me to believe.

48 They were well enough on 18 September to prepare their own submissions to the Coroner. I attach a copy of those submissions to this Judgment.

49 Moreover between 16 August 2001 and 14 September 2001 the directors were able to take part and give instructions in relation to the attempted settlement of this matter and also in relation to further negotiations for the vacation of the hearing date. I propose to attach to this Judgment copies of the following correspondence;

50 I find such correspondence indicates that during the period 16 August to and 14 September the directors of the defendant company were involved in negotiations in relation to the settlement of the matter and able to give considered instructions in relation thereto.

51 In relation to the Inquest it appears that the matter first came before Senior Deputy State Coroner Stevenson in February 2001. Her findings Annexure K to the Affidavit of Rita Chaina-Azar at page 3 states as follows;

'I was not available to commence an Inquest prior to February 2001. Due to the commitments of Senior Counsel appearing for the Chaina family and the family's wish for him to continue to represent their interests, the Inquest was unable to recommence before me until 21 May 2001.'

52 It appears that the Inquest then proceeded for four weeks from 21 May to 15 June. The Inquest was then adjourned to enable further evidence to be taken during the week from 3 September to 7 September and was then adjourned for the parties to make oral submissions from 17 September to 21 September. The Coroner indicated that she would present her findings on 28 September.

53 It is important to note that in relation to these proceedings the Inquest did not sit on 14 September 2001 or at all during that week.

54 Rita Chaina-Azar in her Affidavit does not say that the defendant was not aware that the matter was to be heard on 14 September 2001. She says that by reason of the fact that she was in the midst of the hearing of the Inquest she was not in a position to identify and instruct an alternate solicitor to act. It was a deliberate decision of the directors not to appear on 14 September 2001.

55 The plaintiff flew a witness from New Zealand and another witness from Melbourne for the hearing of this matter on 14 September. If the judgment is set aside then presumably they will have to arrange for those witnesses to attend again. That clearly raises a question of possible prejudice to the plaintiff. Moreover, the Affidavit of the director Rita Chaina-Azar dated 11 October 2001 states (Para 40);

(b) provide all relevant documents for discovery, a process which has been explained to me by my solicitor;

56 The witness statement to which Mrs Chaina-Azar refers in paragraph 40(c) was required to be served by 24 November 1999. In fact a witness statement of George Chaina-Azar was filed on 29 January 2001.

57 In my view it would be unconscionable, if the judgment was set aside, for the plaintiff to be faced with further Notices of Motion or requests for documents now some eight years after the work which it did for the defendant was completed.

58 I find it extraordinary that the defendant would as part of its application for this judgment to be set aside be setting out further interlocutory proceedings which it would plan to bring if the application is successful.

59 I have considered the principle frequently applied by the Court in matters such as this whereby the Court will set aside the judgment if the interests of the plaintiff can be met by an order for costs and if appropriate for interest and perhaps for security in relation to the payment of the alleged outstanding debt.

60 The deponent Rita Chaina-Azar in her affidavit (Para 41) states;

'41. I apologise for and regret any delay in the court and the plaintiff caused by my inability to progress this litigation pursuant to the timetable and in a timely manner. I agree to pay any thrown away costs incurred by the plaintiff as a result of my inability to prosecute these proceedings in accordance with the timetable.'

61 The plaintiff is seeking judgment from the Court in relation to fees which it says was incurred by the defendant in 1993 and 1994. The Cross Claim sought to be brought by the defendant was struck out. I find that the plaintiff and its solicitors have at all times acted reasonably in relation to the conduct of these proceedings and indeed particularly in relation to their attempts to settle the matter between 16 August 2001 and 14 September 2001.

62 There is public interest in the principle that there should be some security and permanency in so far as Court judgments are concerned.

63 I find that the directors of the defendant company have at all stages placed far more importance on the Inquest in relation to the tragic death of their son than they have on these proceedings. They were prepared to incur legal and expert fees in excess of A$1 million with respect to the Coronial Inquiry.

64 They were prepared to delay the hearing of the Coronial Inquiry so as to retain Senior Counsel of their choice.

65 They were prepared to accept dates for hearings in relation to the Inquest notwithstanding that they were aware that this matter had previously be set down for hearing on 14 September 2001.

66 As indicated previously, I have given full weight to the medical evidence submitted on behalf of Mr & Mrs Chaina-Azar. I have given full weight to the matters contained in the Affidavit of Mrs Chaina-Azar dated 11 October 2001.

67 However for all of the reasons I have set out above I am not satisfied that sufficient cause has been shown for the judgment to be set aside. The Motion will be dismissed.

assess in the sum of $750. The costs are to be paid within 21 days.

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Citations

Edward Rushton Pty Ltd v Deluxe Chemicals Pty Ltd [2003] NSWLC 7

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CITATION:	Edward Rushton Pty Ltd v Deluxe Chemicals Pty Ltd [2003] NSWLC 7
JURISDICTION:	Civil
PARTIES:	Edward Rushton Pty Ltd Deluxe Chemicals Pty Ltd
FILE NUMBER:	336/96
PLACE OF HEARING:	Downing Centre Local Court Sydney
DATE OF DECISION:	06/12/2001
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Civil - Procedure - Setting Aside - Judgment
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970 Local Courts (Civil Claims) Rule 1988
CASES CITED:	Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503
REPRESENTATION:	Mr R Perry for Plaintiff Mr P Perry for Defendant
ORDERS:	Motion to set aside judgment dismissed. The defendant to pay the plaintiff's costs in relation to the matter which I assess in the sum of $750.00. The costs are to be paid within 21 days.