Hall v Hall

Case [2007] WASC 198


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HALL -v- HALL [2007] WASC 198

CORAM:   NEWNES J

HEARD:   7 AUGUST 2007

DELIVERED          :   31 AUGUST 2007

FILE NO/S:   CIV 1200 of 2007

BETWEEN:   POPPY DEAN HALL

Plaintiff

AND

ROBYN ANNE HALL
Defendant

Catchwords:

Practice and procedure - Substituted service - Whether material non­disclosure by plaintiff on application for substituted service of writ on defendant - Relevant principles

Practice and procedure - Application by defendant to set aside default judgment - Requirement that defendant show defence on merits - Whether Court must form provisional view of the outcome of the case if judgment set aside - Test to be applied - Whether defendant shown sufficient defence to warrant judgment being set aside

Legislation:

Rules of the Supreme Court 1971 (WA), O 13 r 10

Result:

Default judgment set aside

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M F Holler

Defendant:     Mr A Atkinson

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo

Defendant:     Solomon Brothers

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

Allen v Taylor [1992] 1 PIQR P255

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyd's Rep 221

Behbehani v Salem [1989] 1 WLR 723

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561

Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350

Bryson v Bryant (1992) 29 NSWLR 188

Calverley v Green (1984) 155 CLR 242

Day v RAC Motoring Services Ltd [1999] 1 All ER 1007

Evans v Bartlam [1937] AC 473

Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662

Grimshaw v Dunbar [1953] 1 QB 408

Hayman v Rowlands [1957] 1 WLR 317

Kostokanellis v Allen [1974] VR 596

Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34

Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289

Liberty Financial Pty Ltd v Scott [2002] FCA 345

Nelson v Nelson (1995) 184 CLR 538

Palmer v Prince [1980] WAR 61

Parker v Transfield Pty Ltd [2000] WASCA 382

Rollond v Bank of Western Australia Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998

Russo v Buck [2006] SASC 249

Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639

Surefire Holdings Pty Ltd v Oxley Sports Drome Pty Ltd [2001] QSC 85

Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

Wiseman v Wiseman [1953] P 79

  1. NEWNES J:  This is an application by the defendant to set aside a judgment entered by the plaintiff in default of appearance.

Background

  1. The application arises out of an unfortunate family dispute.  The defendant and her mother, the plaintiff, are the registered proprietors of a retirement villa (the "Villa").  The Villa was purchased in about late 1997 or early 1998.  The plaintiff and the defendant became the registered proprietors on 9 January 1998.  The Villa was purchased with part of the proceeds of the sale of the plaintiff's house, in which…

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Details
AGLC
Hall v Hall [2007] WASC 198
Case
[2007] WASC 198
Decision Date

CaseChat Overview and Summary

In the case of Hall v Hall, the parties involved were the plaintiff, Hall, and the defendant, also Hall. The dispute centred around whether the plaintiff had materially failed to disclose information when applying for substituted service of the writ on the defendant. Additionally, the defendant sought to set aside a default judgment that had been entered against them. The case was heard in the Supreme Court of Queensland. The central legal issues the court needed to address were whether the plaintiff had made a material non-disclosure when applying for substituted service, and if the defendant had shown a sufficient defence to warrant setting aside the default judgment.

The court began by examining the application for substituted service, focusing on whether there was a material non-disclosure by the plaintiff. The court found that the plaintiff's non-disclosure was indeed material and, therefore, the substituted service was invalid. In relation to the application to set aside the default judgment, the court noted that for a defendant to successfully challenge a default judgment, they must demonstrate a defence on the merits. The court applied the test to determine whether the defendant had shown a sufficient defence. The court held that the defendant had demonstrated a prima facie defence on the merits, which warranted setting aside the default judgment. The court concluded that the defendant had satisfied the necessary criteria to have the default judgment set aside.

The final orders of the court were to set aside the default judgment that had been entered against the defendant. This decision underscores the importance of full disclosure in legal proceedings and the potential consequences of failing to do so. It also highlights the court's willingness to set aside a default judgment where a sufficient defence is demonstrated.

Orders

Orders of the court

Default judgment set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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