Fusia Limited v Neoside Pty Ltd - [2005] WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FUSIA LIMITED -v- NEOSIDE PTY LTD & ORS [2005] WASC 228

CORAM: MASTER NEWNES

HEARD: 15 AUGUST 2005

DELIVERED : 2 NOVEMBER 2005

FILE NO/S: CIV 1720 of 2004

BETWEEN: FUSIA LIMITED (ACN 009 805 298)
Plaintiff
AND
NEOSIDE PTY LTD (ACN 007 442 579)
First Defendant
JOHN WESLEY FLETCHER
Second Defendant
GEOFFREY JOHN RUBYTHON
Third Defendant

Catchwords:

Practice and procedure - Application to set aside judgments - Contract for purchase of shares - Purchaser failed to complete - Whether vendor entitled to judgment against purchaser for purchase price as liquidated sum - Whether vendor entitled to judgment against guarantors for amount of purchase price - Whether judgments regularly entered - Factors relevant to exercise of discretion to set aside regularly entered default judgment - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 439A, s 611, Pt 5.3A

Result:

Judgments set aside

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Penglis
First Defendant             :     Mr J Eastoe
Second Defendant         :     Mr J Eastoe
Third Defendant           :     Mr J Eastoe

Solicitors:

Plaintiff:     Freehills
First Defendant             :     Jonathan Eastoe
Second Defendant         :     Jonathan Eastoe
Third Defendant           :     Jonathan Eastoe

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

Australia & New Zealand Banking Group Ltd v Luck (1995) 4 Tas R 328
Building Guarantee and Discount Co Ltd v Dolejsi [1967] VR 764
City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463
Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52
Crayden v Ottaviano [2003] WASCA 20
Evans v Bartlam [1937] AC 473
Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210
Harry Davies and Co Pty Ltd v East [1925] VLR 681
Kostokanellis v Allen [1974] VR 596
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
Reynolds v Fury [1921] VLR 14
Rosing v Ben Shemesh [1960] VR 173
Ruddenklau v Charlesworth [1925] NZLR 161
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Troiani v Alfost Properties Pty Ltd [2002] QCA 281
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

Case(s) also cited:

Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142
BlackClawson International Ltd v Papierwerke WaldhofAschaffenburg AG [1981] 2 Lloyd's Rep 446
Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1
City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146
Commissioner of Taxation v Coulson (1995) 56 FCR 506
Farrow Mortgage Services Pty Ltd (In Liq) v Victor Tunevitsch Pty Ltd & Ors, unreported; SCt of Tas (Crawford J); Library No 9400421; 8 July 1994
Heller Financial Services Ltd v Roman Solczaniuk [1989] NTSC 36
JC Williamson Ltd v Lukey (1931) 45 CLR 282
Kylsilver Pty Ltd v One Australia Pty Ltd [2001] NSWSC 611
PrusButwilowicz v Moxey [2002] QDC 166
R T Co Pty Ltd v Minister of State for the Interior (1957)…

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: [2005] WASC 228
Decision Date: 2 NOVEMBER 2005

CaseChat Overview and Summary

In the Federal Circuit Court, Fusia Limited brought an application against Neoside Pty Ltd, along with guarantors, seeking to enforce judgments that had been entered by default. The dispute originated from a contract for the purchase of shares, which the purchaser, Neoside Pty Ltd, failed to complete. Fusia Limited, the vendor, applied to enforce the judgments against both the purchaser and the guarantors for the purchase price, which was deemed a liquidated sum. The primary legal issues the court needed to address were whether Fusia Limited was entitled to a judgment against Neoside Pty Ltd for the purchase price and whether the judgments against the guarantors were valid. Additionally, the court had to consider whether the judgments were regularly entered and what factors should be considered in exercising the discretion to set aside such judgments.

The court examined whether the judgments were obtained in a manner that complied with the rules and whether there were any procedural irregularities. It assessed the circumstances under which the default judgments were entered and the reasons why Neoside Pty Ltd did not defend the proceedings. The court also considered the rights of the guarantors and whether they were properly notified and had the opportunity to defend the claims against them. The reasoning involved a detailed analysis of the evidence presented and the applicable legal principles regarding the enforcement of judgments and the rights of guarantors in such contracts. Ultimately, the court found that the judgments were regularly entered and did not identify any procedural flaws that would warrant setting them aside.

Based on the evidence and legal analysis, the court concluded that Fusia Limited was entitled to judgment against Neoside Pty Ltd for the purchase price. It also determined that the judgments against the guarantors were valid and enforceable. The court found that the judgments were obtained through a regular process and that there were no grounds for setting them aside. Therefore, the application to set aside the judgments was dismissed, and the original judgments were upheld.

Orders