Janaco Pty Ltd v Comande - [2013] VSC 4

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 5931

JANACO PTY LTD	Plaintiff
v
ANTONIO COMANDE and VINCENZA COMANDE	Defendants

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2013
DATE OF JUDGMENT:	30 April 2013
CASE MAY BE CITED AS:	Janaco Pty Ltd v Comande and anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 4

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PRACTICE AND PROCEDURE – application to set aside default judgment – appearance accepted for filing although application for default judgment already filed - no warning given to solicitor known to act for defendants - warning not required – judgment not irregularly entered – whether proposed defences of fraud by agent of plaintiff and special disadvantage arguable – defendants allege solicitor who certified witnessing of their signatures did not do so– whether impugns conscience of plaintiff – no evidence that plaintiff required compliance with its own requirements as to proof of identity of signatories – no evidence that plaintiff made sufficient enquiry as to capacity of defendants to repay – possible asset based lending - defences arguable – judgment set aside – whether defendants should as a condition be required to pay a portion of the judgment debt – that a matter for trial or later application - Supreme Court (General Civil Procedure) Rules 2005 rr 8.07, 21.07

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Bingham	Cornwall Stodart
For the Defendant	Mr J.D. Lowenstein	Melbourne Legal Chambers

TABLE OF CONTENTS

Was the judgment regularly entered?............................................................................................ 1

Did the Prothonotary “revoke” the appearance after filing?................................................. 1
Was the entry of judgment in breach of good faith?................................................................ 3

Should the judgment be set aside, although regularly entered?.............................................. 5

Is there an arguable defence?...................................................................................................... 6

Amadio defence........................................................................................................................... 7
Alleged fraud at the hands of Mr Triantos................................................................................. 8
Alleged fraud at the hands of Mr Kotsifas.................................................................................. 9

The plaintiff’s case...................................................................................................................... 10
Is there an arguable defence against the plaintiff?................................................................. 14

Conclusion......................................................................................................................................... 18

Should the setting aside of the judgment be conditional?................................................... 19
Orders........................................................................................................................................... 20

HER HONOUR:

This is an application to set aside judgment for recovery of land and debt entered against the defendants in default of an appearance. The application was made by summons filed 21 December 2012, initially returnable 1 March 2013. The hearing of the application was adjourned on that day and on one further occasion to enable further affidavits to be filed. The application was heard on 11 April 2013.

The summons seeks that the judgment be set aside ex debito justitiae i.e. as a matter of justice because irregularly entered or, in the alternative, that the judgment be set aside in the Court’s discretion and the defendants given leave to defend.

Was the judgment regularly entered?
Did the Prothonotary “revoke” the appearance after filing?

Although this is not the heart of their case, the defendants have queried whether the judgment was regular having regard to the time and date of its entry, given that the Registry had accepted their Notice of…

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] VSC 4
Decision Date: 30 April 2013

CaseChat Overview and Summary

In the case of Janaco Pty Ltd v Comande, the plaintiff, Janaco, sought to enforce a judgment debt against the defendants, Comande. The matter was before the Supreme Court of Queensland. The defendants sought to set aside a default judgment entered against them due to their failure to file a defence within the required time. The defendants argued that they had appeared for the purposes of filing a defence, but their application had not been accepted due to the plaintiff already having filed for default judgment.

The court was required to determine whether the defendants' proposed defences were arguable and whether the default judgment had been irregularly entered. The defences included allegations of fraud by an agent of the plaintiff and special disadvantage. The defendants further claimed that the solicitor who certified the witnessing of their signatures did not do so, and this impugned the conscience of the plaintiff. The court had to consider whether the plaintiff had required compliance with its own requirements as to proof of identity of signatories and whether it had made sufficient enquiries as to the capacity of the defendants to repay the debt.

The court found that the proposed defences were arguable, and therefore, the default judgment should be set aside. The court did not find that the judgment was irregularly entered, as the defendants had not been warned that their application would not be accepted. The court did not consider it necessary for the plaintiff to have warned the solicitor known to act for the defendants, as the warning was not required. The court also found that the defences of fraud by an agent and special disadvantage were arguable, as there was no evidence that the plaintiff had required compliance with its own requirements as to proof of identity of signatories, and there was evidence that the defendants may have been involved in asset-based lending. The court did not consider it appropriate to require the defendants to pay a portion of the judgment debt as a condition of setting aside the judgment, as this was a matter for trial or a later application.

The court set aside the default judgment and ordered that the defendants' application to set aside the judgment be allowed. The court did not order the defendants to pay a portion of the judgment debt as a condition of setting aside the judgment, as this was a matter for trial or a later application.

Orders