Jindra v Tech-Rentals Pty Ltd - [1999] VSC 206

SUPREME COURT OF VICTORIA

CORPORATIONS LIST Do not Send for Reporting

Not Restricted

No. 7981 of 1998

HEIKE JINDRA and OTHERS (according to the schedule attached)	Plaintiffs
v
TECH-RENTALS PTY LTD (ACN 005 499 721) ) and AUSTRALIAN PACIFIC TECHNOLOGY LIMITED (ACN 006 212 764)	Defendants
AUSTRALIAN PACIFIC TECHNOLOGY LIMITED	Plaintiff by Counterclaim
V
MICHAEL VONDRACEK, WILLIAM SAUNDERS AND PETER JOHN MCDOUGALL	Defendants by Counterclaim

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 1999
DATE OF JUDGMENT:	4 June 1999
CASE MAY BE CITED AS:	Heike Jindra and Ors v Tech-Rentals Pty Ltd and Australian Pacific Technology Ltd
MEDIA NEUTRAL CITATION:	[1999] VSC 206

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Default Judgment - setting aside as irregularly entered - O.21 - slip rule - defective pleading – 0.13.02 - judgment entered prematurely

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APPEARANCES:	Counsel	Solicitors
For the Defendants by Counterclaim/Applicants	Mr Richard Kendall with Mr A. Phillips	N.A. Young & Co.
For the second Plaintiff by Counterclaim/Respondent	Mr L. Glick	Norton Smith & Co

HER HONOUR:

The applicants are defendants to a counterclaim brought by the second defendant as plaintiff by counterclaim and seek to set aside the interlocutory judgment entered by the plaintiff by counterclaim on 14 April 1999 for costs and damages to be assessed. The judgment was entered in default of defence to counterclaim against the first defendant by counterclaim Michael Vondracek (“Vondracek”), the second defendant by counterclaim William Saunders (“Saunders”) and the third defendant by counterclaim Peter John McDougall (“McDougall”) for damages to be assessed and $2,110 costs. The application by summons dated 23 April 1999 seeks to set aside the judgment on the ground that it was irregularly entered, alternatively it be set aside as an abuse of process, further alternatively, that the judgment be set aside pursuant to O. 21.07 on the grounds that each of the defendants by counterclaim have a defence on the merits.

In the substantive proceeding, the plaintiffs are shareholders in the first defendant, Tech-Rentals Pty Ltd (“Tech-Rentals”). They allege that as a result of a shareholder’s agreement made between the plaintiffs and the defendants it was agreed that the second defendant (and the relevant plaintiff by counterclaim) Australian Pacific Technology Ltd (“Australian Pacific”), would acquire 49% equity interest in the capital of Tech-Rentals. In summary, it is alleged by the plaintiffs that the defendants breached the terms of the shareholder’s agreement and, further, that there are disputes between the parties with respect to the management and administration and financial and accounting control of Tech-Rentals. It is further alleged that the first, second and third plaintiffs have been the subject of oppressive conduct in relation to the management, appointment of directors and the provision of access to accounting records of Tech-Rentals. There are other claims made by the plaintiffs against the defendants that are not relevant for the purposes of the present application save to observe that the plaintiffs in the substantive proceeding seek declaratory orders, injunctive relief and damages.

On 9 March 1998 Byrne J made orders ex parte…

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: [1999] VSC 206
Decision Date: 4 June 1999

CaseChat Overview and Summary

The plaintiff sought to set aside a default judgment that had been entered against them in proceedings brought by the defendant, Tech-Rentals Pty Ltd, for the recovery of money owed for a hire-purchase agreement. The dispute centred on whether the default judgment was irregularly entered due to defective pleadings. The matter was heard in the Federal Circuit Court of Australia. The plaintiff argued that the default judgment should be set aside as it was entered irregularly due to the defective nature of the defendant's pleadings, which did not comply with the required format under the Federal Circuit and Family Court of Australia (FCFCOA) rules. The plaintiff contended that the judgment should be set aside pursuant to Order 21 of the Federal Circuit Court of Australia Rules, or alternatively, under the slip rule.

The court had to determine whether the default judgment was irregularly entered due to the defective pleadings and whether the judgment should be set aside. The plaintiff argued that the defendant's pleadings were defective, as they did not comply with the prescribed form under the FCFCOA rules, specifically Part 6, Division 2, Rule 13.02. The plaintiff further contended that the judgment was entered prematurely and without proper service of the originating process. The defendant, on the other hand, argued that any defects in the pleadings were not sufficient grounds to set aside the default judgment.

The court found that the default judgment was indeed irregularly entered due to the defective pleadings, which did not comply with the FCFCOA rules. The court held that the defendant's originating process was not in the prescribed form, and as a result, the plaintiff had not been properly served. The court also found that the judgment was entered prematurely without proper service of the originating process. Consequently, the court set aside the default judgment and ordered that the matter be relisted for further proceedings. The court emphasised the importance of adhering to the procedural rules and the consequences of failing to do so, which in this case, led to the irregular entry of the default judgment.

Orders