Embleton Motor Co Pty Ltd v KASAMOGLU
[2012] WASC 158
•14 MAY 2012
EMBLETON MOTOR CO PTY LTD -v- KASAMOGLU [2012] WASC 158
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 158 | |
| Case No: | CIV:2895/2010 | 3 APRIL 2012 | |
| Coram: | MASTER SANDERSON | 14/05/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | EMBLETON MOTOR CO PTY LTD HUSSEIN KASAMOGLU ABDURAHMAN SAEDI |
Catchwords: | Practice and procedure Application to set aside default judgment Defendant attempting to rely on late affidavits Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
HUSSEIN KASAMOGLU
First Defendant
ABDURAHMAN SAEDI
Second Defendant
Catchwords:
Practice and procedure - Application to set aside default judgment - Defendant attempting to rely on late affidavits - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr B G Grubb
First Defendant : Mr K Kappadath
Second Defendant : Mr K Kappadath
Solicitors:
Plaintiff : Metaxas & Hager
First Defendant : Starnet Legal Pty Ltd
Second Defendant : Starnet Legal Pty Ltd
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This was the defendants' application to set aside a default judgment entered on 22 July 2011. The application to set aside the judgment was made on 3 November 2011. After hearing argument, I dismissed the application. I indicated to the parties I would publish reasons for my decision. These are those reasons.
2 The writ with an indorsement of claim was issued on 24 November 2010. In its indorsement of claim the plaintiff sought the following relief:
1. A declaration that Swan Taxi plates 181 and 597 ('Plates') are leased to the plaintiff by the defendants as owners, pursuant to verbal agreements to lease made, respectively, on or about 4 and 12 June 2008 at Bayswater, Perth between the plaintiff and the second defendant (acting at all relevant times as agent for the first defendant), upon terms for a lease period of 5 years with a further option for 5 years and terminable only on reasonable notice which the plaintiff contends is a period of years ('Leases');
2. A declaration no, or no valid, notices of termination for the leases of the Plates have been served on the plaintiff and that the Leases of the Plates have not been terminated;
3. A declaration it is an implied term of the Leases for the Plates that the defendants, as owners of the Plates, will do all required of them to maintain access by the plaintiff to the Swan Taxi dispatch service, or any similar service, and will not act so that the plaintiff cannot otherwise have full and uninterrupted benefit of the leases of the Plates and/or have access to Swan Taxi dispatch service, or any similar service;
4. Damages; and
5. Costs.
3 On 29 November 2011, the parties lodged a memorandum of consent orders which, effectively, was an injunction and which extended the injunction until further order of the court. The injunction and the additional orders were largely in terms of the relief sought in the writ. On 20 December 2010, appearances were filed on behalf of both defendants. A statement of claim was filed on 24 January 2011.
4 A status conference was held on 4 February 2011. An order was made the defendants file their defence and any counterclaim by 18 February 2011. That was not done. A further status conference was held on 17 June 2011. An order was made that the defence and counterclaim be filed and served forthwith. Once again, that order was not complied with. At a further status conference on 1 July 2011, the
(Page 4)
- court ordered that unless the defendants filed and served a defence and counterclaim by 8 July 2011 the plaintiff would have leave to apply for default judgment. The defence and counterclaim was not filed by 8 July 2011.
5 On 11 July 2011, the plaintiff applied for default judgment. On 19 July 2011, the court sent an email to the defendants' solicitors advising the status conference had been relisted to 22 July 2011. The court advised the purpose of the status conference was to deal with the plaintiff's application for default judgment. The defendants did not appear at the status conference and Registrar Boyle entered judgment. On 22 September 2011, the plaintiff filed and served a bill of costs. This application to set aside the default judgment was brought on 3 November 2011.
6 This application was first returned on 10 November 2011 and adjourned to 17 November 2011 when, by consent, orders were made allowing the plaintiff to file an affidavit in response to the affidavit in support of the application. The plaintiff's affidavit was filed on 25 November 2011. On the same date, the plaintiff's solicitors filed a list of objections to the defendants' affidavit filed in support of the application. On 15 February 2012, the court advised the parties the matter had been set down for 6 March 2012 to determine the application. On that date, the application was further adjourned by consent. So, the application was finally heard and determined some four months after it was lodged and some eight months after judgment was entered.
7 At the commencement of the hearing, counsel for the defendants sought leave to rely on two affidavits. Respectively these were an affidavit of Kimani Adil Boden, sworn 29 March 2012 and an affidavit was an affidavit of Abdurahman Saedi, sworn 1 April 2012. Counsel for the plaintiff objected to these affidavits being admitted into evidence. First, he said the affidavits were late and there was no explanation as to why they were late. Second, he maintained the affidavits were largely inadmissible. In accordance with proper practice, I read both affidavits and after hearing submissions from counsel for the defendants, I refused to allow these affidavits into evidence. What follows are my reasons for that refusal.
8 Mr Boden is the solicitor acting for the defendants. In his affidavit of 29 March 2012, he confirms the defendants deny they are liable to the plaintiff as alleged, or at all. He then annexes an unsigned witness statement of Mr Saedi in related proceedings. His affidavit says nothing
(Page 5)
- about why it was not filed earlier and says nothing about why orders made at the status conference were not complied with.
9 The affidavit of Mr Saedi sets out what he says are the circumstances of the case. It appears to be the witness statement attached to the affidavit of Mr Boden in affidavit form. It goes to the merits of the action and it too says nothing about the circumstances which led to the default judgment being entered. Nor does it do anything to explain the delay in bringing the application to set aside the default judgment.
10 Any affidavit which is filed late, particularly one which is filed a matter of days before the hearing or handed up on the day of the hearing, should contain an explanation as to why it is late. In the absence of such an explanation, it is difficult to see why the affidavit should be admitted into evidence. Here, there was no attempt to explain the delay. In my view, that was fatal. If it had been the case that the affidavits contained something which was of probative value, perhaps the defendants would have been on firmer ground. But neither of the two affidavits (insofar as they differed one from the other) offered anything of particular relevance to the present application. There was no real point in their being admitted into evidence. Accordingly, I refused the defendants' application to admit these affidavits.
11 That meant the defendants' application was supported only by an affidavit of Mr Boden sworn 3 November 2011. Mr Boden refers to the status conference of 4 February 2011 and the requirement the defendants file a defence and counterclaim by 18 February 2011. He says on or about 17 February 2011, a defence and counterclaim was posted to the court. However, the required filing fee of $784 was not enclosed with the document. Consequently, the defence and counterclaim were not filed.
12 At the status conference on 17 June 2011, the fact the defence and counterclaim had not been filed became apparent. Mr Boden acknowledges orders were made allowing for the filing of the defence and counterclaim and adjourning the status conference to 1 July 2011. He then continues as follows:
8. On 1 July 2011 the time for filing the defence and counterclaim was extended until 8 July 2011 on the basis that this order was a self executing order.
9. During this period in late June and July 2011 I have been [sic] experiencing difficulties with my email and consequently I have not been aware [sic] of the various status conferences proceeded [sic] invariably without any appearance on behalf of the
- defendants. I now understand that an email was sent to me advising of the status conference on 22 July 2011, however at the time this email was not brought to my attention.
- 10. On 20 July I forwarded a letter to this Honourable Court enclosing the defence and counterclaim and the filing fee in the sum of $784.
13 All of this is unsatisfactory. Mr Boden is a lawyer employed by a firm of solicitors in Victoria. They are acting for the defendants. They should have ascertained from the Rules of the Supreme Court 1971 (WA) whether or not a payment was required when lodging a defence and counterclaim. There is no explanation as to why they did not do so. But at least by 17 June 2011, Mr Boden was aware the defence and counterclaim had not been filed. Presumably, he was also aware it had not been filed because a fee had not been paid. Why the position was not put to rights at that stage is not explained. In the end, it is difficult to see why Mr Boden did not rectify the position well before default judgment was entered on 22 July 2011. The explanation he provides is wholly unsatisfactory.
14 The remainder of the affidavit deals with correspondence directed to the associate to the registrar who entered default judgment. Once again, there is no explanation as to why once Mr Boden became aware judgment had been entered, he did nothing - at least until the application to set aside the default judgment was filed on 3 November 2011.
15 Furthermore, Mr Boden's affidavit offers no explanation of what the defence might be. True it is it contains the proposed pleaded defence and counterclaim. But that document is not evidence. It would seem that Mr Boden realised the deficiency in the affidavit material and that is why he attempted to rely on subsequent affidavits. The very fact of that attempt is an acknowledgment the evidentiary position as represented by his affidavit of 3 November 2011 was deficient.
16 It is unnecessary to go through the principles upon which default judgment will be set aside. There was no dispute between the parties. At the very least, an applicant to set aside a default judgment must provide an adequate explanation to the circumstances which led to the default judgment and produce evidence they have a defence to the claim. The defendants in this case did neither. Therefore, the application failed.
17 The order will be the chamber summons be dismissed. The parties should file submissions on costs within seven days.
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