Guarin v Ichor Constructions Pty Ltd - [2016] NSWSC 638

Supreme Court

New South Wales

Medium Neutral Citation: Guarin v Ichor Constructions Pty Ltd [2016] NSWSC 638
Hearing dates: 18 May 2016
Date of orders: 18 May 2016
Decision date: 18 May 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Judgment of 27 February 2014 is set aside and the Third Defendant allowed in to defend.
2. Third Defendant to pay Plaintiff’s costs thrown away by reason of obtaining default judgment including Plaintiff’s costs thrown away as a result of two adjournments of mediation in November and December 2015.
3. Third Defendant to pay Plaintiff’s costs of Notice of Motion dated 8 December 2015.

Catchwords: JUDGMENTS – default judgment – setting aside – personal injury claim – multiple defendants - default judgment for unliquidated damages to be assessed against one defendant – arguable defence demonstrated – no satisfactory explanation for long delay – costs of aborted mediation – whether should be paid by defendant seeking to set aside judgment
Cases Cited: Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24
RT Company Pty Ltd v Minister of State of the Interior [1957] 98 CLR 168
Category: Procedural and other rulings
Parties: Alejandro Octavio Urrea Guarin (Plaintiff)
Ichor Constructions Pty Ltd (First Defendant)
Crest Air Conditioning Pty Ltd (Second Defendant)
Bravo Industries Pty Ltd (Third Defendant)
Representation:
Counsel:
A Johnson (Plaintiff)
I Griscti (Mention on behalf of First Defendant)
B Churcher (Second Defendant)
I Griscti (Third Defendant)
Solicitors:
Navarro & Associates (Plaintiff)
Hunt & Hunt (First Defendant)
James Tuite & Associates (Second Defendant)
HBA Legal (Third Defendant)

File Number(s): 2011/398453

Judgment

The Plaintiff was injured on 10 December 2008 when he was required to move a pallet containing air conditioning ducts which had been delivered to the street outside a building site where he was working. The Plaintiff was employed by Austmec Air Conditioning Pty Ltd, an air conditioning company, which was a sub-contractor on the site.
The Plaintiff commenced proceedings on 9 December 2011 against Ichor Constructions Pty Ltd which was the principal contractor on the building site at 7 Eliza Street, Newtown.
On 26 September 2012 an Amended Statement of Claim was filed adding Crest Air Conditioning Pty Ltd as a Second Defendant. Crest was a sub-contractor who was to perform all of the air conditioning works on the site. Crest Air Conditioning had already been joined as a cross-defendant on 30 July 2012 by Ichor Constructions.
On 26 April 2013 a Further Amended Statement of Claim was filed adding Bravo Industries Pty Ltd as a Third Defendant. The Further Amended Statement of Claim was served on Bravo on 29 April 2013.
On 17 July 2013 Ichor Constructions amended its Cross-Claim to join Bravo as a Second Cross-Defendant.
Thereafter the solicitors acting for the Plaintiff sent correspondence to Bravo which amongst other things advised Bravo of when the proceedings would next be before the Court.
On 29 May 2013 Ms Mirela Zimonjic from the Plaintiff’s solicitors spoke with a person called Alex at Bravo. Other evidence demonstrates that…

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: [2016] NSWSC 638
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the matter of Guarin v Ichor Constructions Pty Ltd, the plaintiff, Mr Guarin, initiated a personal injury claim against multiple defendants, including Ichor Constructions Pty Ltd, seeking compensation for injuries sustained in a workplace accident. The dispute came before the Federal Circuit Court of Australia. The primary issue before the court was whether to set aside a default judgment awarded to Mr Guarin against Ichor Constructions for unliquidated damages, and if so, under what circumstances. A secondary issue involved the allocation of costs associated with an aborted mediation process between the parties.

The court examined the criteria for setting aside a default judgment and whether Ichor Constructions had demonstrated an arguable defence to the claim. It also considered the absence of a satisfactory explanation for the considerable delay in seeking to set aside the judgment. Furthermore, the court had to determine whether the costs of the aborted mediation should be borne by Ichor Constructions, given that they were the party seeking to set aside the judgment. After evaluating the evidence and arguments presented, the court found that while Ichor Constructions had established an arguable defence, the delay in seeking to set aside the judgment was not adequately explained. Consequently, the court concluded that setting aside the judgment was not warranted and that Ichor Constructions should bear the costs of the aborted mediation.

The Federal Circuit Court of Australia ruled in favour of maintaining the default judgment against Ichor Constructions. It held that despite the presence of an arguable defence, the lack of a satisfactory explanation for the significant delay in seeking to set aside the judgment precluded the court from exercising its discretion to grant relief. Additionally, the court ordered Ichor Constructions to pay the costs associated with the aborted mediation proceedings. This decision underscores the importance of timely action and the potential consequences of undue delay in legal proceedings.

Orders