Jade Holdings Pty Ltd v Allison - [2013] TASSC 68

[2013] TASSC 68

COURT: SUPREME COURT OF TASMANIA

CITATION: Jade Holdings Pty Ltd v Allison [2013] TASSC 68

PARTIES:  JADE HOLDINGS PTY LTD ACN 009534507
  v
  ALLISON, Paul Francis

FILE NO:  444/2013
DELIVERED ON:  18 November 2013
DELIVERED AT:  Hobart
HEARING DATES:  4, 6 and 7 November 2013
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme court procedure – Tasmania – Practice under rules of court – Default of pleading – Judgment by default – Power to set aside – Considerations – Defence on the merits.

Supreme Court Rules 2000 (Tas), r355.
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239; Shocked v Goldschmidt (1998) 1 All ER 327; Grimshaw v Dunbar (1953) 1 QB 408; Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503; Evans v Bartlam (1937) AC 473, followed.
Aust Dig Procedure [275]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Gunson SC
             Defendant:  J P Murphy
Solicitors:
             Plaintiff:  Gunson Williams
             Defendant:  In person

Judgment Number: [2013] TASSC 68
Number of paragraphs: 30

Serial No 68/2013
File No 444/2013

JADE HOLDINGS PTY LTD ACN 009534507 v PAUL FRANCIS ALLISON

REASONS FOR JUDGMENT HOLT AsJ

18 November 2013

The defendant, Mr Paul Allison, has applied for an order setting aside a final judgment entered in default of the filing and delivery of a defence.

Rule 355 of the Supreme Court Rules 2000 is as follows:

"Any judgment by default under these rules may be set aside or varied by the Court or a judge either unconditionally or on any terms the Court or a judge considers appropriate."

On such an application: "The question is whether, upon the material that has been placed before (the court), there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand", Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 – 244, per Jordan CJ. The dominant consideration is usually whether there is a defence on the merits. Shocked v Goldschmidt (1998) 1 All ER 327 at 379. This is because, prima facie, a party to an action is entitled to have it heard in his presence, to dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give his own evidence. Grimshaw v Dunbar (1953) 1 QB 408 at 416. Although the defendant pledging his oath to facts which, if proved at trial, could constitute a defence, will usually be sufficient to show that it would be unjust to allow the judgment to stand, if the court concluded that the defendant was lying about the defence and was thus dishonest in raising it, there could be no conclusion that an injustice would result by allowing the judgment to remain. Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 507, per Hope JA. The defendant will usually be expected to explain the reason for the failure to take the procedural step which resulted in the judgment. Evans v Bartlam [1937]…

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: [2013] TASSC 68
Decision Date: 18 November 2013

CaseChat Overview and Summary

The case of Jade Holdings Pty Ltd v Allison was heard in the Supreme Court of Tasmania. The dispute centred around a default judgment entered against Allison, where Jade Holdings sought to enforce this judgment. Allison applied to set aside the default judgment on the basis that she had a defence on the merits and that setting aside the judgment was in the interests of justice. The court was required to determine whether the defendant's application was made within a reasonable time and whether there was a bona fide defence on the merits that could potentially succeed. Additionally, the court had to consider the broader principles of justice in deciding whether to set aside the default judgment.

The court acknowledged the importance of the principle that a party should not be allowed to sleep on their rights and that applications to set aside a default judgment should be made promptly. However, the court also recognised that the interests of justice could override these principles if there was a substantial defence on the merits. In assessing the merits of the defence, the court considered the evidence and arguments presented by Allison, focusing on whether there was a reasonable prospect of success if the case were to proceed to a full hearing. The court found that Allison had presented a credible defence which, if proven, could potentially negate the claim made by Jade Holdings. Consequently, the court concluded that it was appropriate to exercise its discretion to set aside the default judgment in the interests of justice.

The Supreme Court of Tasmania set aside the default judgment entered against Allison. The court found that the application was made within a reasonable time and that there was a bona fide defence on the merits. Furthermore, the court determined that setting aside the default judgment was in the interests of justice, given the potential success of Allison's defence. The final orders of the court included setting aside the default judgment, allowing Allison's defence to proceed, and directing the parties to engage in further proceedings to determine the merits of the case. This decision underscores the court's commitment to ensuring that justice is served, even in cases where a default judgment has been entered.

Orders