Emirge Pty Ltd v De Coppi - [2024] WADC 83

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   EMIRGE PTY LTD -v- DE COPPI [2024] WADC 83
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   20 SEPTEMBER 2024
DELIVERED          :   26 SEPTEMBER 2024
FILE NO/S:   CIV 3822 of 2023
BETWEEN:   EMIRGE PTY LTD
Plaintiff
AND
TONY DE COPPI
Defendant

Catchwords:

Practice and procedure - Proposed counterclaim filed after entry for trial - Whether leave to file counterclaim should be granted - Where defendant unrepresented - Principles to be applied - Considerations relevant to exercise of discretion

Legislation:

District Court Rules 2005 (WA), r 38A
Limitation Act 2005 (WA), s 13
Rules of the Supreme Court 1971 (WA), O1 r 4A, O 1 r 4B, O 18 r 2, O 20 r 4, O 20 r 19

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A P Hershowitz
Defendant	:	In person

Solicitors:

Plaintiff	:	Paiker & Overmeire
Defendant	:	Not applicable

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Culleton v Permanent Custodians Ltd [2018] WASC 251
Greg Rowe Pty Ltd v Hill [No 2] [2012] WADC 157
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Nyoni v Patterson [2012] WASCA 171
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Re Rules of The Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tobin v Dodd [2004] WASCA 288
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

The defendant, who is unrepresented, has sought the leave of the court to make a counterclaim in the proceedings, despite the action having been entered for trial.
For the reasons that follow, leave to file a counterclaim is refused.

Relevant procedural history

The plaintiff commenced the action against the defendant by a writ of summons filed on 2 August 2023, and filed a statement of claim on 31 August 2023.
The plaintiff is a builder and, in essence, claims against the defendant for monies said to be owed under a building contract:
(a)by which the defendant engaged the plaintiff to construct a residence for him at an address in Ellenbrook (residence);
(b)pursuant to which the defendant carried out works and issued progress payment claims to the defendant;
(c)in breach of which the defendant has made only part payment of the progress payment claims invoiced to him; and
(d)pursuant to which the unpaid portion of the progress payment claims (totalling $129,000) is owed to the plaintiff, plus interest a rate of 20% per annum.
The defendant, who is unrepresented:
(a)filed a memorandum of appearance on 18 August 2023; and
(b)has not filed a defence (so titled) but, on…

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: [2024] WADC 83
Decision Date: 26 SEPTEMBER 2024

CaseChat Overview and Summary

Emirge Pty Ltd commenced proceedings against De Coppi in the Federal Circuit Court, seeking damages for breach of contract and associated claims. De Coppi, unrepresented, filed a late defence and sought to file a counterclaim. Emirge opposed the filing of the counterclaim on the basis that it was filed after the entry of trial. The court was required to determine whether leave should be granted to De Coppi to file the counterclaim and the principles and considerations relevant to the exercise of that discretion.

The court examined the principles governing the filing of late pleadings, emphasising that while there is a strong preference for cases to be determined on their merits, the court's discretion to allow late filing is not absolute. The court considered the nature of the counterclaim, the reasons for the delay, and the potential prejudice to the plaintiff if the counterclaim was allowed. The court also took into account that De Coppi was unrepresented, which might impact the fairness of the proceedings and the ability to present a proper case. Ultimately, the court found that the counterclaim was significant and related to the subject matter of the proceedings, and that there was no substantial prejudice to Emirge if the counterclaim was allowed. The court exercised its discretion in favour of De Coppi, granting leave to file the counterclaim.

The court's decision highlights the importance of considering the specific circumstances of each case when exercising discretion over late pleadings. While the court generally prefers cases to be decided on their merits, the unrepresented status of a party and the potential for prejudice to the opposing party are critical factors in the court's decision-making process. The court's approach ensures that justice is served while balancing the interests of both parties.

Orders