Giuliana Properties Pty Ltd v Mahrami - [2023] WADC 21

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   GIULIANA PROPERTIES PTY LTD -v- MAHRAMI [2023] WADC 21
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   22 FEBRUARY 2023
DELIVERED          :   Ex tempore
FILE NO/S:   CIV 1245 of 2022
BETWEEN:   GIULIANA PROPERTIES PTY LTD
Plaintiff
AND
MOHAMMAD LATIF MAHRAMI
Defendant

Catchwords:

Practice and procedure - Application to set aside default judgment - Principles to be applied - Indemnity costs - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Oaths,Affidavits and Statutory Declarations Act 2005 (WA)
Commercial Tenancy (Retail Shops) Act 1985 (WA)
Property Law Act1969 (WA)

Result:

Judgment set aside

Representation:

Counsel:

Plaintiff	:	Mr J Davis
Defendant	:	Mr J R C Sippe

Solicitors:

Plaintiff	:	DW Fox Tucker
Defendant	:	Lemonis & Tantiprasut

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

Crayden as Executor of the Estate of Sandra Irene Farnworth v Ottaviano [2003] WASCA 20
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382

REGISTRAR JEYAMOHAN:

[This judgment was delivered extemporaneously on 28 February 2023 and edited from the transcript.]

Introduction

These reasons concern the defendant's application to set aside default judgment.

Background

By way of background on 29 March 2022 the plaintiff commenced these proceedings against the defendant. The plaintiff's claim is in the plaintiff's capacity as the lessor to recover amounts purportedly owing by the defendant as guarantor pursuant to a purported breach of the lease by Bestway.
On 1 June 2022 the plaintiff was granted judgment against the defendant in default of his appearance in the proceeding. It is not in dispute that the judgment was validly entered.
On 12 August 2022 the defendant filed this application to set aside the default judgment against him.

Legal principles

The principles relevant to an application under O 13 r 14 of the Rules of the Supreme Court1971 (WA) (RSC) to set aside a regularly entered default judgment are well-established.
First, the discretion under O 13 r 14 of the RSC is to be exercised so as to do justice between the parties in the circumstances of the case. A defendant should only be denied the opportunity to proceed in the ordinary way, and after taking advantage of the usual interlocutory processes, if there is a high degree of certainty about the outcome should the matter go to trial: Starrs v Retravision (WA) Ltd [2012] WASCA 67 [36], [51].
Second, it is not for the court to resolve factual issues. Provided the defendant's case is not inherently incredible, the question is whether, if the defendant's evidence were accepted at trial, the defendant would have a real prospect of success: that is, whether the defence is reasonably arguable. That is not a high threshold: TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 [46].
Third, 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.

Keep reading for free

Create a free CaseChat account to read Giuliana Properties Pty Ltd v Mahrami and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WADC 21
Decision Date: 22 FEBRUARY 2023

CaseChat Overview and Summary

Giuliana Properties Pty Ltd brought an action against Mahrami in the Supreme Court of Western Australia seeking recovery of unpaid rent. Mahrami did not enter an appearance and a default judgment was entered in favour of Giuliana. Mahrami subsequently sought to set aside the default judgment on the basis that he had a satisfactory reason for not entering an appearance and filing a defence. The court had to decide whether Mahrami had a satisfactory reason for not entering an appearance and filing a defence, and whether setting aside the default judgment would cause any prejudice to Giuliana. The court found that Mahrami had a satisfactory reason for not entering an appearance and filing a defence, as he did not understand the writ due to his limited English and ill health, and misunderstood it as a demand for payment rather than a legal document. The court also found that setting aside the default judgment would not cause any prejudice to Giuliana, as it would not affect Giuliana's rights to recover the unpaid rent. The court ordered that the default judgment be set aside and the matter be listed for further directions.

The court considered the principles to be applied in determining whether to set aside a default judgment, including the explanation given by the defendants for allowing the judgments to be entered against them, the length of the delay between the judgment being entered and the application to set it aside, and the extent of any prejudice that the plaintiff would suffer if the judgment were set aside. The court also considered the relevant factors in determining whether to award indemnity costs, including the conduct of the parties and whether the application to set aside the judgment was frivolous or vexatious. The court found that Mahrami had provided a satisfactory explanation for his failure to enter an appearance and file a defence, and that setting aside the default judgment would not cause any prejudice to Giuliana. The court also found that Mahrami's application was not frivolous or vexatious, and therefore, indemnity costs were not appropriate. The court ordered that the default judgment be set aside and the matter be listed for further directions, and that each party bear their own costs of the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Third, the following factors are also relevant to the exercise of the discretion: Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [11]:•The explanation given by the defendants for allowing the judgments to be entered against them.•The length of the delay between the judgment being entered and the application to set it aside, and the defendants' explanation for that delay.•the extent of any prejudice that the plaintiff would suffer if the judgment were set aside. A defendant who has an apparently good defence is unlikely to be refused the opportunity of defending (even though a lengthy interval of time had elapsed), provided that no irreparable prejudice is done to the plaintiff: Crayden as Executor of the Estate of Sandra Irene Farnworth v Ottaviano [2003] WASCA 20 [16] - [18]. The defendant relies on the following affidavits filed in support of this application:1.the affidavit of Phatcha Mintie Tantiprasut sworn 12 August 2022 (First Tantiprasut Affidavit);2.the affidavit of Rahmat Mahrami sworn 12 August 2022 (Rahmat Affidavit);3.the affidavit of Mr Mahrami sworn 12 August 2022 (Mahrami Affidavit);4.the affidavit of Farzaneh Pashm Forosh sworn 12 August 2022, who translated Mr Mahrami's affidavit for the purposes of the Oaths,Affidavits and Statutory Declarations Act 2005 (WA); and5.the further affidavit of Ms Tantiprasut sworn 13 January 2023 (Second Tantiprasut Affidavit). The plaintiff relies on the following affidavits by way of response: the affidavit of Nicholas DiMauro made on 20 December 2022 (DiMauro Affidavit); the affidavit of Helen Stain made on 21 December 2022 (Stain Affidavit); and the affidavit of Ritney Lee Ly made on 14 April 2022 (Ly Affidavit). In order to succeed the defendant's application need only to demonstrate a satisfactory reason for the failure of the defendant to enter an appearance and a defence on the merits. In respect of the matter of the defendant's failure to enter an appearance, these matters have been addressed by way of submission and are deposed to by Mr Mahrami in his affidavit as well as Mr Rahmat in his affidavit. Relevantly, Mr Mahrami has deposed to the fact that he understands limited English, that at the time he was served with the writ commencing these proceedings he was suffering from ill health and that he continues to do so. Mr Mahrami asked his son for help to understand the writ and Mr Mahrami and Mr Rahmat deposed to having misunderstood the document to be a demand for payment and not in fact the document that evidenced the commencement of legal proceedings. Mr Mahrami's son attempted to contact the plaintiff's lawyer to clarify Mr Mahrami's responsibility for the lease and this is deposed to by Mr Ramat in his affidavit at pars 9 and 10. Mr Mahrami deposed to the fact that he nonetheless contacted his solicitors and due to his misunderstanding of the document, his (Mr Mahrami's) solicitors at the time took no action. These matters are deposed to by both Mr Ramat in his affidavit at par 11 and Mr Mahrami at his affidavit at par 49.