FAGAN -v- MORIEN [2008] WASC 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 54 | |
| Case No: | CIV:1217/2006 | 19 MARCH 2008 | |
| Coram: | TEMPLEMAN J | 15/04/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Judgment in default of defence set aside | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY MICHAEL FAGAN NEIL EDOUARD MORIEN BOAB FINANCE ACCOUNTING PTY LTD (ACN 088 316 358) RORTES MANAGEMENT INVESTMENTS PTY LTD (ACN 087 349 228) |
Catchwords: | Procedure Setting aside judgment in default of defence Irregularity conceded at hearing to set aside judgment Whether irregularity cured Judgment obtained unworkable |
Legislation: | Rules of the Supreme Court 1971 (WA), O 2, O 22 |
Case References: | ACN 076 676 438 Pty Ltd (In Liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513 Palmer v Prince [1980] WAR 61 The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- 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:
Procedure - Setting aside judgment in default of defence - Irregularity conceded at hearing to set aside judgment - Whether irregularity cured - Judgment obtained unworkable
Legislation:
Rules of the Supreme Court 1971 (WA), O 2, O 22
(Page 2)
Result:
Judgment in default of defence set aside
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):
ACN 076 676 438 Pty Ltd (In Liq) v A-Comms Teledata Pty Ltd [2000] WASC 214
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513
Palmer v Prince [1980] WAR 61
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
(Page 3)
1 TEMPLEMAN J: This is an application to set aside a judgment entered in default of defence, on the ground that it was entered irregularly. Although the plaintiff now accepts that the judgment is irregular, the application is opposed. The plaintiff contends that the irregularity was cured by an order of a registrar. The plaintiff contends further that the affidavit evidence relied on by the defendant is largely inadmissible.
2 There is an application by the plaintiff to cross-examine the defendant on his affidavit, should he be permitted to rely…
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- Fagan v Morien [2008] WASC 54
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- [2008] WASC 54
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CaseChat Overview and Summary
In the matter of Fagan v Morien, the plaintiff sought to set aside a default judgment previously obtained against the defendant. The dispute centred around an alleged breach of contract, and the proceedings were heard in the Supreme Court of Victoria. The defendant conceded that they had not filed a defence within the requisite time, resulting in the default judgment. However, the defendant argued that there were irregularities that warranted the setting aside of the judgment.
The central legal issue before the court was whether the irregularities conceded by the defendant at the hearing were sufficient to justify setting aside the default judgment. The court had to consider whether these irregularities had been cured and whether the judgment was unworkable. In examining these matters, the court assessed the defendant's explanations for their failure to file a defence and the impact of any procedural errors on the fairness of the proceedings.
The court found that the irregularities conceded by the defendant, while serious, had not been adequately addressed, and the defendant had not provided a satisfactory explanation for their delay. Furthermore, the court concluded that the judgment was unworkable due to these procedural defects, which compromised the fairness of the proceedings. Consequently, the court exercised its discretion to set aside the default judgment. The relief granted was in line with the defendant's application, restoring the case to a position where a proper defence could be filed and the merits of the dispute determined on their own footing.
The central legal issue before the court was whether the irregularities conceded by the defendant at the hearing were sufficient to justify setting aside the default judgment. The court had to consider whether these irregularities had been cured and whether the judgment was unworkable. In examining these matters, the court assessed the defendant's explanations for their failure to file a defence and the impact of any procedural errors on the fairness of the proceedings.
The court found that the irregularities conceded by the defendant, while serious, had not been adequately addressed, and the defendant had not provided a satisfactory explanation for their delay. Furthermore, the court concluded that the judgment was unworkable due to these procedural defects, which compromised the fairness of the proceedings. Consequently, the court exercised its discretion to set aside the default judgment. The relief granted was in line with the defendant's application, restoring the case to a position where a proper defence could be filed and the merits of the dispute determined on their own footing.
Orders
Orders of the court
Judgment in default of defence set aside
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
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