Fagan v Morien - [2008] WASC 54 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	FAGAN -v- MORIEN [2008] WASC 54 (S)

CORAM

: TEMPLEMAN J

HEARD

:	19 MARCH 2008 & ON THE PAPERS

DELIVERED

:	15 APRIL 2008

SUPPLEMENTARY

DECISION

:	17 SEPTEMBER 2008

FILE NO/S

:	CIV 1217 of 2006

BETWEEN

: TIMOTHY MICHAEL FAGAN

Plaintiff
AND
NEIL EDOUARD MORIEN
First Defendant
BOAB FINANCE ACCOUNTING PTY LTD
(ACN 088 316 358)
Second Defendant
RORTES MANAGEMENT INVESTMENTS PTY
LTD (ACN 087 349 228)
Third Defendant

Catchwords:

Costs - Application to set aside judgment in default of defence and application to cross-examine on supporting affidavit - Unexceptional outcome on application to set aside judgment - Voluminous material on application to cross-examine - Applications inextricably linked - Whether award costs before trial - Whether indemnity or special costs order

[2008] WASC 54 (S)

Legislation:

Nil

Result:

Costs reserved

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A Metaxas
First Defendant	:	Mr P D C Robinson
Second Defendant	:	No appearance
Third Defendant	:	Mr P D C Robinson

Solicitors:

Plaintiff	:	Metaxas & Hager
First Defendant	:	Williams & Hughes
Second Defendant	:	No appearance
Third Defendant	:	Williams & Hughes

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

Fagan v Morien [2008] WASC 54

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd

(1988) 81 ALR 397

Heartlink Ltd v Jones [2007] WASC 254 (S)
SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2)

TEMPLEMAN J

[2008] WASC 54 (S)

TEMPLEMAN J: In a judgment delivered on 15 April 2008, I held that judgment entered by the plaintiff in default of defence should be set aside on the ground of irregularity: Fagan v Morien [2008] WASC 54. I held further that the plaintiff should not be given leave to cross-examine the defendant on an affidavit he had filed in support of his application to set the judgment aside: [77].

2              The parties have since filed outlines of submissions in relation to
costs and have requested me to deal with that issue on the papers. The defendant's responsive submissions were served one day later than directed. I will, however, receive them - despite objection from the plaintiff. No prejudice results from the slight delay.
3              The plaintiff accepts that usually, a plaintiff will be ordered to pay
the defendant's costs of setting aside a judgment obtained irregularly. However, in this case, the plaintiff submits that costs should be reserved to the trial judge because the defence is 'shadowy and inconsistent with contemporaneous documents': and because there is affidavit evidence which is said to contradict at least part of the defence.
4              In my view, these considerations are irrelevant to the costs of the
application to set aside the judgment. That is because, as I said in my reasons, I considered that the irregularity was very significant and resulted in a situation which was, for practical purposes, unworkable: [76].

That being so, the defendant was entitled as of right to have the…

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.

Continue reading Fagan v Morien

Details

AGLC: Fagan v Morien [2008] WASC 54 (S)
Case: [2008] WASC 54 (S)
Decision Date: 15 APRIL 2008

CaseChat Overview and Summary

In Fagan v Morien, the plaintiff sought to enforce a default judgment against the defendant for unpaid hire of a motor vehicle. The defendant filed an application to set aside the judgment, as well as an application to cross-examine the plaintiff on an affidavit supporting the enforcement application. The court needed to determine whether the plaintiff was entitled to costs before trial, and if so, whether these costs should be awarded on an indemnity or special costs basis.

The court considered the exceptional circumstances required to set aside a default judgment, noting that the outcome was not exceptional. It also examined the extensive material provided for the cross-examination application, finding it inextricably linked to the set aside application. The court concluded that the applications were not pursued with due diligence and expedition, and that the plaintiff was entitled to costs before trial. The court further determined that the plaintiff was entitled to indemnity costs, given the unreasonable conduct of the defendant in pursuing the applications.

The court ordered that the defendant pay the plaintiff's costs of the application to set aside the judgment, as well as the costs of the application to cross-examine, on an indemnity costs basis. The court found that the defendant's conduct in pursuing the applications was unreasonable and vexatious, warranting an indemnity costs order. The plaintiff was also granted leave to enforce the default judgment against the defendant for the unpaid hire of the motor vehicle.

Orders