Investec Experien Pty Ltd (Formerly known as Experien Pty Ltd) v Robert Keith Will and Charlene Marella Caspersz as trustee for the Will Family Trust

[2010] WASC 320

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   INVESTEC EXPERIEN PTY LTD (Formerly known as Experien Pty Ltd) -v- ROBERT KEITH WILL and CHARLENE MARELLA CASPERSZ as trustee for the WILL FAMILY TRUST [2010] WASC 320

CORAM:   MASTER SANDERSON

HEARD:   29 OCTOBER 2010

DELIVERED          :   9 NOVEMBER 2010

FILE NO/S:   CIV 2782 of 2009

BETWEEN:   INVESTEC EXPERIEN PTY LTD (Formerly known as Experien Pty Ltd)

Plaintiff

AND

ROBERT KEITH WILL and CHARLENE MARELLA CASPERSZ as trustee for the WILL FAMILY TRUST
First Defendants

ROBERT KEITH WILL
Second Defendant

CHARLENE MARELLA CASPERESZ
Third Defendant

Catchwords:

Practice and procedure - Application to set aside default judgment obtained under O 62A - Whether O 22 applicable

Legislation:

Nil

Result:

Application to set aside dismissed

Category:    A

Representation:

Counsel:

Plaintiff:     Mr R J Bowker

First Defendants           :     Mr A J Aristei

Second Defendant         :     Mr A J Aristei

Third Defendant           :     Mr A J Aristei

Solicitors:

Plaintiff:     Tottle Partners

First Defendants           :     Carlo Primerano & Associates

Second Defendant         :     Carlo Primerano & Associates

Third Defendant           :     Carlo Primerano & Associates

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

Nil

1. MASTER SANDERSON: This application raises the question as to the nature of a default judgment obtained under O 62A of the Rules of the Supreme Court 1971 (WA) (the Rules). The sequence of events which led to the entering of a judgment under that rule are not in dispute and can be outlined as follows.

2. On 14 October 2009 the plaintiff issued a writ of summons with an indorsement of claim.  The indorsement sought delivery up of certain land and judgment for a specific sum.  Additional consequential relief was sought which is not presently relevant.  The defendants filed memorandum of appearances between 30 October and 9 November 2009.  A statement of claim was filed on 1 December 2009.

3. On 9 December 2009 a status conference was held before a registrar. The defendants were represented by solicitors. On 27 January 2010 a further status conference was heard before a registrar and again the defendants were represented. A chamber summons for default judgment pursuant to O 62A was filed on 16 February 2010. On 2 March 2010 the plaintiff's application to enter judgment came on before the registrar. Counsel for the plaintiff foreshadowed an amendment to the statement of claim and the application was adjourned. The matter was further called on, on 9 March 2010 and again it was adjourned. An amended writ of summons and an amended statement of claim were filed on 18 March 2010.

4. Under O 21 r 4(1) of the Rules the defendants had 14 days after service of the amended statement of claim to file a defence.  That meant the defendants had until 1 April 2010 to file a defence.  Strictly speaking then the plaintiff could not enter judgment in default of defence until 2 April 2010. 

5. On 30 March 2010 the plaintiff's application under O 62A came on for hearing. The registrar granted leave to the plaintiff to enter judgment pursuant to O 62A r 4(1). Judgment was duly entered. The defendants have now applied under O 22 of the Rules to set aside the judgment on the basis they say it was irregularly entered.

6. The plaintiff maintains it is not open to the defendants to seek to set aside the default judgment under O 22.  They say the default judgment could not have been entered without leave of the court.  Leave was granted and judgment was entered.  The plaintiff says if judgment should not have been entered then the proper approach is to appeal against the decision of the registrar.  Any application which relies on O 22 is bound to fail. 

7. I accept that submission.  True it is that what has been entered is default judgment.  But it is default judgment which was entered with leave.  It cannot be irregular.  To attempt to set aside that default judgment amounts to a collateral attack on the order of the registrar. 

8. Of course it would be open to the defendants to appeal the decision of the registrar.  They are well out of time to do so.  They would need to apply for an extension of time to bring the appeal.  Whether they take this course is a matter for them, but the present course of attempting to set aside the default judgment must fail. 

9. The application will be dismissed with costs.