Jender Pty Ltd v Flood Emergency Services Group Pty Ltd - [2021] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04873

JENDER PTY LTD (formerly known as DAVIS GLASS PTY LTD) (ACN 006 612 577)	Plaintiff
v
FLOOD EMERGENCY SERVICES GROUP PTY LTD (ACN 166 955 193)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2020
DATE OF JUDGMENT:	29 April 2021
CASE MAY BE CITED AS:	Jender Pty Ltd v Flood Emergency Services Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 212

---

JUDICIAL REVIEW – Application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to quash a magistrate’s decision to dismiss an application for rehearing and to set aside default judgment – Whether there was an error on the face of the record – Whether the decision was unreasonable – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 referred to and applied; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 referred to; Gunns Finance Pty Ltd (R & M Appntd) (In Liq) v Storey [2014] VSC 260 referred to – Whether the magistrate failed to provide adequate reasons – Makeham v Sheppard [2020] VSCA 242 referred to – Application for judicial review granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke QC with Mr J Lipinski	Wisewould Mahony
For the Defendants	Mr A Aleksov	Snowton Saje

HER HONOUR:

Introduction and Background

In 2017, the plaintiff in this proceeding (‘Jender’), then known as Davis Glass Pty Ltd, operated a wholesale glass products business (‘business’) out of premises located at 156 Melrose Drive, Tullamarine (‘premises’). The director of Jender at all relevant times was Mr Derek Clayton.

On or about 25 October 2017, Jender entered into an agreement to sell its business (‘business’), including the business name “Davis Glass” to Rick Saunders and Clint Milner or their nominee (‘sale agreement’).

Davis Glass 1 Pty Ltd (‘Davis Glass 1’) was incorporated on 19 January 2018. The directors and shareholders of Davis Glass 1 are Mr Saunders and Mr Milner.

On 18 March 2018, the sale was completed. Prior to settlement, Mr Saunders and Mr Milner nominated Davis Glass 1 as the purchaser under the sale agreement. Settlement was effected by Jender handing over the assets of the business to Davis Glass 1 and vacating the premises. Davis Glass 1 entered a new lease in respect of the premises commencing on 1 April 2018.

Following the settlement of the sale, neither Jender nor Mr Clayton had any involvement in the management of the business. Jender has no employees, and is, for present purposes, dormant.

On 22 November 2018, Ms Connie Budd, an employee of Davis Glass 1, engaged the defendant in this proceeding, Flood Emergency Services Group Pty Ltd (‘FES’), to attend the premises and perform flood restoration and remediation services. Ms Budd was an employee of Jender prior to the purchase of the…

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.

Keep reading for free

Create a free CaseChat account to read Jender Pty Ltd v Flood Emergency Services Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 212
Decision Date: 29 April 2021

CaseChat Overview and Summary

Jender Pty Ltd sought judicial review of a decision by a magistrate to dismiss their application for rehearing and to set aside a default judgment against them in proceedings brought by Flood Emergency Services Group Pty Ltd. The dispute arose from a contract for the supply of emergency services equipment, which Jender Pty Ltd had failed to fulfil. The matter came before the court for judicial review, where the central legal issues were whether there was an error on the face of the record, whether the decision was unreasonable, and whether the magistrate failed to provide adequate reasons for their decision.

In examining the magistrate's decision, the court considered whether it contained any apparent error, as per the principles established in Minister for Immigration and Citizenship v Li. The court also assessed whether the decision was unreasonable in light of the authorities cited in Minister for Immigration and Border Protection v Stretton and Gunns Finance Pty Ltd (R & M Appntd) (In Liq) v Storey. Furthermore, the court scrutinised whether the magistrate's decision-making process was flawed due to a lack of adequate reasons, as highlighted in Makeham v Sheppard. The court found that the magistrate had not provided sufficient reasons for their decision and that the decision itself was unreasonable.

As a result of the findings, the court granted the application for judicial review, quashing the magistrate’s decision and setting aside the default judgment. The court's ruling underscored the importance of providing adequate reasons for decisions in judicial proceedings and emphasised the need for such reasons to be transparent and comprehensible. The orders of the court were that the decision of the magistrate be quashed, and the application for rehearing and to set aside the default judgment be remitted for reconsideration.

Orders