Finlayson v Indigenous Business Australia - [2014] VSCA 95

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0042

PATRICK FINLAYSON
	Applicant
v
INDIGENOUS BUSINESS AUSTRALIA	Respondent

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JUDGES:	ASHLEY JA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2014
DATE OF JUDGMENT:	12 May 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 95
JUDGMENT APPEALED FROM:	Indigenous Business Australia v Finlayson (Unreported Ruling, County Court of Victoria, Judge Cosgrave, 11 April 2014)

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CIVIL PROCEDURE – Application for leave to appeal from refusal to set aside default judgment – Application for stay of default judgment – First National Bank of Montgomery v Daly considered – No defence on the merits – No substantial injustice if decision allowed to stand – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Mr T Connard	Australian Government Solicitor

ASHLEY JA:

I will ask Almond AJA to give the first judgment.

ALMOND AJA:

Mr Patrick Finlayson is the registered owner of land at 27 Victoria Cross Parade at Wodonga in Victoria. By proceeding commenced on 28 August 2013 in the County Court Victoria, Indigenous Business Australia (IBA)[1] sought recovery of possession of the land on the basis that Mr Finlayson had defaulted under the terms of his mortgage with IBA.
[1]A statutory authority established under s 145 of the Aboriginal and Torres Strait Islander Act 2005 (Cth).

On 13 February 2014, IBA obtained judgment in default of defence against Mr Finlayson for possession of the land.

Mr Finlayson applied to set aside the default judgment. After a contested hearing on 11 April 2014, a County Court judge made an order dismissing the application to set aside the default judgment. Mr Finlayson applies for leave to appeal from this order and for a stay of the judgment.[2] IBA, the respondent, opposes both applications.
[2]Two summonses were filed in the matter, dated 16 April 2014 and 24 April 2014.

An order refusing to set aside a default judgment is interlocutory in nature.[3] Under s 74(2D) of the County Court Act 1958 (Vic), leave of the Court of Appeal is needed to appeal from an interlocutory order.
[3]Carr v Finance Corporation of Australia (No 1) (1981) 147 CLR 246, 248; Permanent Custodians Limited v Palmer [2009] VSCA 80, [3].

The test for granting leave to appeal from an interlocutory order is whether the decision below is wrong or is attended by sufficient doubt to warrant it being reconsidered on appeal and substantial injustice would be done if the order was allowed to stand.[4]

[4]Niemann v Electronic Industries Ltd [1978] VR 431, 441-442.

Background

The writ and statement of claim in this proceeding were taken to be served on Mr Finlayson on about 28 October 2013 pursuant to orders made by the judge on 22 November 2013.[5]
[5]Affidavit of Robyn Joy Curnow sworn 7 May 2014 (Curnow Affidavit) [5]–[6].

On 19 December 2013, a Mr David Avery, solicitor, telephoned Ms Jennifer Lim of the Australian Government Solicitor (AGS). He stated that he acted for…

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: [2014] VSCA 95
Decision Date: 12 May 2014

CaseChat Overview and Summary

The case of Finlayson v Indigenous Business Australia involved an application by the respondent, Indigenous Business Australia, to refuse the applicant's leave to appeal against the refusal to set aside a default judgment, as well as an application to stay the default judgment. The matter was heard in the Federal Court of Australia.

The primary legal issue that the court had to determine was whether the applicant had a defence on the merits and whether there was a substantial injustice if the decision was allowed to stand. The court considered whether the principles set out in the case of First National Bank of Montgomery v Daly applied, which emphasised the importance of the court's discretion in deciding whether to set aside a default judgment. The court also considered whether the applicant had a bona fide defence to the proceedings and whether there were any circumstances that could justify the setting aside of the default judgment.

The court found that the applicant did not have a defence on the merits and that there was no substantial injustice if the decision was allowed to stand. The court emphasised that the principles in First National Bank of Montgomery v Daly applied and that the court's discretion should be exercised sparingly. The court held that the applicant had not demonstrated any circumstances that could justify the setting aside of the default judgment. The court also noted that the applicant had not provided any evidence to support their claim that they had a bona fide defence to the proceedings.

The court refused the application for leave to appeal and the application for a stay of the default judgment. The court held that the decision of the primary judge should be upheld and that there were no grounds for the applicant to appeal against the refusal to set aside the default judgment. The court did not consider it appropriate to exercise its discretion to set aside the default judgment in the circumstances of the case.

Orders