Harbison v Eng

[2002] WADC 169

HARBISON -v- ENG [2002] WADC 169

Last Update:  21/08/2002

HARBISON -v- ENG [2002] WADC 169
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 169
Case No:	CIV:503/2001	Heard:	17 JUNE 2002
Coram:	COMMISSIONER GREAVES	Delivered:	07/08/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	3	Judgment Part:	1 of 1
Result:	Appeals allowed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ANTHONY HARBISON CHWEE PIOH ENG
Catchwords:	Practice and procedure Whether default judgment should be set aside and time extended to file amended statement of claim Defendant adequately accommodated in costs Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : HARBISON -v- ENG [2002] WADC 169 CORAM : COMMISSIONER GREAVES HEARD : 17 JUNE 2002 DELIVERED : 7 AUGUST 2002 FILE NO/S : CIV 503 of 2001 BETWEEN : ANTHONY HARBISON

Plaintiff

AND

CHWEE PIOH ENG
Defendant

Catchwords:

Practice and procedure - Whether default judgment should be set aside and time extended to file amended statement of claim - Defendant adequately accommodated in costs - Turns on own facts

Legislation:

Nil

Result:

Appeals allowed


(Page 2)

Representation:

Counsel:

Plaintiff : Mr D E Eley
Defendant : Mr M C Hotchkin

Solicitors:

Plaintiff : Eley Palmer Archer
Defendant : Hotchkin Hanly

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 COMMISSIONER GREAVES: On 24 October 2001, the parties filed a minute of consent orders which included an order that the plaintiff file an amended statement of claim. No amended statement of claim was filed within the time allowed and on 18 January 2001, Deputy Registrar Wallace made a springing order, pursuant to which the defendant entered default judgment against the plaintiff on 31 January 2002, no amended statement of claim having been filed in accordance with the order. Subsequently Deputy Registrar Hewitt refused to set aside that judgment and refused an extension of time to comply with the springing order.

2 The decisions of the learned Deputy Registrars were within power and the judgment was properly entered. The appellant seeks an extension of time to appeal from the decision of Deputy Registrar Wallace and an extension of time to comply with the springing order and to file an amended statement of claim, refused by Deputy Registrar Hewitt.

3 Counsel for the appellant conceded these unhappy circumstances have been brought about by the conduct of the plaintiff's case by the solicitors for the appellant. The delay is not that of the appellant personally. The respondent submits the appellant should have no further time in view of the inordinate delay that has occurred. I have some sympathy for that view, but I have reached the conclusion that the respondent can be adequately accommodated in costs. Accordingly, the extension of time within which to appeal should be granted, both appeals allowed, the default judgment set aside and the time for filing the amended statement of claim extended to seven days after judgment.

4 I will hear counsel on the question of costs. In the circumstances I will entertain an application that the appellant pay the respondent's costs of the appeal and the respondent's costs thrown away since the entry of judgment to be taxed in any event. The action is to be remitted for the purpose of further programming orders.

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