Eli Eco Logic Australia Pty Ltd v Carroll - [2000] WADC 98

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ELI ECO LOGIC AUSTRALIA PTY LTD -v- CARROLL [2000] WADC 98

CORAM: MACKNAY DCJ

HEARD: 22 DECEMBER 1999

DELIVERED : 19 APRIL 2000

FILE NO/S: CIV 1247 of 1999

BETWEEN: ELI ECO LOGIC AUSTRALIA PTY LTD (071 329 765)
Plaintiff
AND
CRAIG CARROLL
Defendant

Catchwords:

Judgments and orders - Setting aside of default judgment - Delay in bringing application - Whether delay explained - Whether material put forward demonstrated real likelihood of success - Turns on own facts

Legislation:

Nil

Result:

Appeal against order of refusal to set aside default judgment allowed.

Representation:

Counsel:

Plaintiff: Mr P Mendelow
Defendant: Ms J E Bartlett

Solicitors:

Plaintiff: KPMG Legal
Defendant: Jackson McDonald

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

Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co Inc [1986] 2 Lloyds Rep 221
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kostokanellis v Allen (1974) VR 596
Palmer v Prince (1980) WAR 61
Rolland & Ors v Bank of Western Australia [1998] FCt SCt of WA; Library No 980026A; 2 February 1998

Case(s) also cited:

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Evans v Bartlam [1937] AC 473
Say v Fitzpatrick, unreported; FCt SCt of WA; Library No 6865; 14 September 1987

MACKNAY DCJ:

Introduction

This is an appeal by the defendant from a refusal of a Registrar on 5 October 1999 to set aside a default judgment against the defendant.
On an appeal from a Registrar of the Court the application is to be reheard de novo, save that an appellant should begin: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.

Claim

The plaintiff's claim is for $28,672.50, together with interest thereon.
The claim is said to arise from a written agreement made between the parties, and dated 22 September 1998, in which the plaintiff agreed to provide waste treatment and disposal services for the destruction of toxic chemicals, at a cost of $7.50 per kilogram.
The plaintiff says that pursuant to that agreement it treated 3,823kg of PCB contaminated oil and solids.
The defendant is apparently a resident of Christmas Island, and the writ of summons was served on him there.
No appearance was entered by the defendant after service and as a result the plaintiff sought, and on 25 May 1999 obtained, a default judgment against him.
By an application of 29 July 1999 the defendant then sought to set the default judgment aside.
In an affidavit of the same date filed in support the defendant set out his reasons for not entering an appearance as follows:
"Following service of the Writ of Summons I was told by a friend and work associate that I did not need to take any action in relation to the Writ because no step could be taken whilst I was on Christmas Island. I have since received legal advice which I accept to the effect that…

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: [2000] WADC 98
Decision Date: 19 APRIL 2000

CaseChat Overview and Summary

The case of Eli Eco Logic Australia Pty Ltd v Carroll involved a dispute concerning the setting aside of a default judgment. The applicant, Eli Eco Logic Australia Pty Ltd, sought to overturn a default judgment entered against it by the respondent, Carroll, in the Federal Circuit and Family Court of Australia. The primary issue was whether the delay in bringing the application to set aside the default judgment could be justified and whether the material presented demonstrated a real likelihood of success on the merits.

The court needed to determine if the delay in filing the application was sufficiently explained and whether the evidence provided by Eli Eco Logic Australia Pty Ltd was compelling enough to warrant setting aside the default judgment. The court assessed the explanation for the delay and the merits of the case based on the material submitted, focusing on whether the application demonstrated a real prospect of success. The court emphasised that the decision to set aside a default judgment depended on the specific circumstances of each case, requiring a careful evaluation of both the delay and the merits.

In its judgment, the court found that the applicant had not adequately explained the delay in bringing the application. Furthermore, the evidence presented did not demonstrate a real likelihood of success on the merits. Consequently, the court dismissed the application to set aside the default judgment. The respondent's default judgment was upheld, and no orders were made in favour of the applicant.

Orders