Birch Investments Pty Ltd v Kiap Khee Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Blair & Perpetual Trustee Co Ltd v Curran (Adams'…
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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AGLC
Erom Pty Ltd v Croft [2005] WADC 106
Case
[2005] WADC 106
Decision Date
CaseChat Overview and Summary
Erom Pty Ltd was the plaintiff in the Federal Court and sought to enforce a judgment against Croft, the defendant, who had been found liable in a previous proceeding. The plaintiff applied for springing orders to be enforced, which would become effective if Croft did not comply with certain conditions set by the court. The dispute centred on whether the court had the authority to grant such orders and, if so, the circumstances under which they could be properly exercised. The case also involved an application by Croft to enlarge the time for considering possible defences to all pleaded causes of action.
The primary legal issue was whether the court had the jurisdiction to grant springing orders, which would enforce compliance with conditions set by the court if the defendant failed to meet them within a specified time. The court also needed to determine the appropriate circumstances under which such orders could be exercised, considering the principles of case management and the need to attain justice. Additionally, the court had to assess whether the plaintiff's application to enlarge the time for considering possible defences was warranted, and if so, under what conditions.
The court found that springing orders could indeed be made by the court, not only in cases of contumacy but also where a party had been persistently dilatory. The court emphasised that the power to make such orders was closely tied to case management principles but could not override the ultimate aim of attaining justice. The court noted that a party demonstrating no intention to ignore or flout the order and whose failure to comply was due to extraneous circumstances might not be disentitled to their rights. Regarding the application to enlarge the time for considering possible defences, the court considered whether there was an affidavit of merits that would allow it to exercise its discretion to set aside the judgment.
The court granted the plaintiff's application for springing orders, subject to certain conditions, and allowed the defendant's application to enlarge the time for considering possible defences. The court emphasised the need for a credible defence to be presented if the default judgment was to be set aside, as noted by Malcolm CJ in Rollond v Bank of Western Australia. The court's decision was guided by the principles of case management and the overarching objective of attaining justice, while also considering the need for finality in litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There appears to be little doubt these days that an application may be made to set aside such a judgment such application being coupled with an application to extend the time for compliance with the original orders which gave rise to the conditional order for judgment; FAI General Insurance Co Ltd & Ors v Southern Cross Exploration NL & Ors (1988) 165 CLR 268 in which Wilson J at 283 noted that the similar provision in the New South Wales Rules of the Supreme Court was: "a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to the conditional order ought to be excused from non‑compliance." Earlier in the judgment his Honour referred at p 280 to the approach in England where the court has power to extend the time where a conditional order has been made but not complied with "but the power should only be exercised with caution and with due regard to the principle that orders are made to be observed." gA springing order may be made not only in cases of contumacy but also where a party has been persistently dilatory in taking steps in an action or where it can be inferred that he or she will not or is unlikely to take them; Freeman v Rabinov [1981] VR 539 at 545. The power to make springing orders and the making of them is closely bound up with case management. However, it must be remembered that the aim of the Court is the attainment to justice and principles of case management cannot be allowed to supplant that aim; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154. Having regard to those case management principles as limited by the dicta in the Queensland case it may be the case that a party that has demonstrated that there was no intention to ignore or flout the order and that the failure was due to extraneous circumstances would not be disentitled to the rights which he or she would otherwise have enjoyed; Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 at 637. To the extent that a judgment stemming from the self executing order is a judgment in default of defence it seems quite clear that where a judgment is regularly obtained, on an application to set it aside there must be an affidavit of merits on which the Court can exercise its discretion whether or not to set aside the judgment. In relation to those merits Malcolm CJ in Rollond v Bank of Western Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998 at p 41 noted:"In my opinion, … for an application to set aside a default judgment to be successful, the defendant must present a credible defence demonstrating that, if the default judgment was set aside and the matter was argued on its merits, the defendant would have a real prospect of success."