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Greg Rowe Pty Ltd v Hill

Greg Rowe Pty Ltd v Hill

Case [2012] WADC 104 5 July 2012

Appeal

Limitation Periods

Default Judgment

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GREG ROWE PTY LTD -v- HILL [2012] WADC 104

CORAM: DAVIS DCJ

HEARD :23 MARCH 2012

DELIVERED : 5 JULY 2012

FILE NO/S: CIV 3520 of 2010

BETWEEN: GREG ROWE PTY LTD
Plaintiff
AND
CHRISTINA ISABELLE SARAH HILL
First Defendant
JULIA LOUISE HILL in her capacity and as trustee for the Platill Trust
Second Defendant

Catchwords:

Practice and procedure - Application for extension of time within which to appeal - Appeal from deputy registrar - Setting aside default judgment - Turns on own facts

Legislation:

Civil Liability Act 2002
District Court Rules 2005

Result:

Extension of time within which to appeal granted
Appeal allowed
Default judgment set aside on conditions

Representation:

Counsel:

Plaintiff:     Mr A Rowe
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     Rowe Bristol Lawyers
First Defendant             :     Not applicable
Second Defendant         :     Not applicable

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

Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299
Batiste v Gilmour-Latham [2001] NSWCA 392
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385
D Galambos & Son Pty Ltd v McIntyre (1974) 5 ACTR 10
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd (No 2) [2012] WASCA 27
Gallo v Dawson (1990) 64 ALJR 458
Hall v Hall [2007] WASC 198
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
HJ Lyons & Sando Ltd v Houlson [1963] SASR 29
Lawrence v Slemko [2009] WASC 33
Lewis v Averay [1972] 1 QB 198
McDonnell and East Ltd v McGregor (1936) 56 CLR 50
Melbourne Glass Pty Ltd v Coby Constructions Pty Ltd (1998) 14 BCL 409
Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439
Parker v Transfield Pty Ltd [2000] WASCA 382
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Stanley v Layne Christensen Co [2006] WASCA 56
Tobin v Dodd [2004] WASCA 288
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Tomko v Palasty [2007] NSWCA 258

DAVIS DCJ: On 10 January 2012, the defendants in this action, Christina Hill and her daughter Julia Hill, filed an appeal against a decision of the deputy registrar made on 3 October 2011 where he dismissed their application to set aside default judgment entered against them by the plaintiff, Greg Rowe Pty Ltd. The judgment was entered on 4 August 2011 in default of the filing of a defence. The judgment amount totals $105,000.88, made up of:
(a)$3,227.95 plus $275.92 interest; and
(b)$93,845.40 plus $7,651.61 interest.
While it is normally my practice to refer to the parties by name, because both defendants have the same surname and in order to avoid confusion, in this judgment I will be referring to them as the first defendant and the second defendant respectively and together as the defendants.
The notice of appeal filed by the defendants…

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 Greg Rowe Pty Ltd v Hill

Details

AGLC: Greg Rowe Pty Ltd v Hill [2012] WADC 104
Case: [2012] WADC 104
Decision Date: 5 JULY 2012

CaseChat Overview and Summary

In the case of Greg Rowe Pty Ltd v Hill, the dispute arose between the plaintiff, Greg Rowe Pty Ltd, and the defendant, Hill, over a matter that reached the Supreme Court of Western Australia. The plaintiff sought an extension of time to appeal a decision made by a deputy registrar, who had dismissed the plaintiff's application to set aside a default judgment entered against them. The plaintiff contended that they had a reasonable excuse for failing to lodge the appeal within the stipulated timeframe, and therefore sought an extension of time to appeal the decision of the deputy registrar.

The primary legal issue before the court was whether the plaintiff had provided sufficient grounds to justify an extension of time to appeal the decision of the deputy registrar. The court had to consider the circumstances surrounding the default judgment, the reasons for the plaintiff's failure to lodge the appeal within the prescribed time, and whether there were any exceptional circumstances that warranted an extension of time. Additionally, the court had to determine whether the application for an extension of time should be considered in light of the specific facts and circumstances of the case.

In its judgment, the court found that the application for an extension of time was dependent on the unique facts of the case. The court held that while there were certain circumstances that might ordinarily justify an extension of time, the plaintiff had not provided sufficient evidence or explanation to support their application. The court emphasised that each case must be assessed on its own merits, and that the application for an extension of time would turn on its own facts. Consequently, the court dismissed the plaintiff's application for an extension of time to appeal the decision of the deputy registrar.

The court's decision was based on the plaintiff's inability to provide a compelling reason for the delay in lodging the appeal. The court concluded that the application did not meet the necessary threshold to warrant an extension of time. As a result, the plaintiff's appeal against the decision of the deputy registrar was dismissed, and the default judgment remained in place. The court's decision underscored the importance of adhering to strict timeframes in legal proceedings and the need for applicants to provide robust justification for any delays in meeting those deadlines.

Orders