Josa Constructions Pty Ltd v Amarino Pty Ltd - [2016] NSWDC 306

District Court

New South Wales

Medium Neutral Citation: Josa Constructions Pty Ltd v Amarino Pty Ltd [2016] NSWDC 306
Hearing dates: 6 August 2016, 9 August 2016
Date of orders: 07 September 2016
Decision date: 07 September 2016
Jurisdiction: Civil
Before: Wass SC DCJ
Decision:
1 Pursuant to Part 36.15 of the Uniform Civil Procedure Rules, default judgment is set aside.

2 Alternatively, pursuant to Part 36.16 of the Uniform Civil Procedure Rules, default judgment is set aside.

3   Pursuant to R 1.12, the defendants file a defence to the statement of claim on or before 17 October 2016.

4   That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following orders:

I.   That Mr Yakenian pay the costs of the motion personally on an indemnity basis, payable forthwith;

II.   That Mr Yakenian not seek to recover those costs from the plaintiff;

5   That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following order:

I.   That the papers be referred to the Legal Services Commissioner for investigation.

6   If such show cause is filed, further argument regarding costs and referral will be heard and issues determined during the sittings commencing at Parramatta District Court on 17 October 2016.
7   Stood over for mention on 17 October 2016 at Parramatta District Court.
Catchwords: Civil – notice of motion – default judgment – against good faith
Legislation Cited: Uniform Civil Procedure Rules (2005) NSW r. 36.15, r. 36.16, r. 1.12
Civil Procedure Act (2005) NSW s 56
Cases Cited: Allesch v Maunz (2003) 203 CLR 172
Coles v Burke (1987) 10 NSWLR 429
Commonwealth Bank of Australia v Wales [2012] NSWSC 407
Grimshaw v Dunbar [1953] 1 QB 408
Hamafam Pty Ltd v Saddullah [2007] NSWSC 818
IMG of America Pty Ltd v Townsend 1983
Industry Funds Management (Nominees) Pty Limited v James Nicolas Panagopoulos and Anor [2013] NSWCSC 868
Kendell v Carnegie [2006] NSWCA 302
Magnate Projects Pty Ltd v Youma Constructions (No. 2) Pty Ltd [2005] NSWCA 331
Pope v Aberdeen Transport Co Pty Ltd
Stollzhow v Calvert [1980] 2 NSWLR 749
Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR (NSW) 239
Verner v Giannaro [2016] NSWSC 242
Category: Principal judgment
Parties: Josa Constructions Pty Ltd (First plaintiff)
Amarino Pty Ltd (First defendant)
Lap Quoc Truong (Second defendant)
Mainway Management Pty Ltd (Third defendant)
KWC Capital Partners Pty Ltd (Fourth defendant)
Dusko David Tenevski (Fifth defendant)
Representation:
Counsel:
Mr Gruzman (Plaintiff)
Mr Corbett (Defendants)
Solicitors:
Yakenian Solicitors (Plaintiff)
BCP Lawyers and Consultants (Defendants)

File Number(s): 2016/188005
Publication restriction: None

Judgment

Introduction

On 9 August 2016 the defendants moved on a notice of motion, stood over from 5 August 2016 part heard, when I made orders 1 and 2 ex parte in accordance with orders sought on the motion, granting a stay of the execution of the default judgment obtained in this matter by the plaintiff…

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: [2016] NSWDC 306
Decision Date: 07 September 2016

CaseChat Overview and Summary

The case of Josa Constructions Pty Ltd v Amarino Pty Ltd involved a dispute between two construction companies over alleged breaches of contract. The matter was heard in the Supreme Court of New South Wales. Josa Constructions sought to enforce a default judgment against Amarino, which had failed to respond to the statement of claim. Amarino opposed the enforcement, arguing that it had been misled by Josa's representative and that the default judgment was against good faith.

The primary legal issue before the court was whether the default judgment should be enforced, set aside, or alternatively, set aside under specific provisions of the Uniform Civil Procedure Rules. The court had to consider whether Amarino had a valid defence to the claim and whether the default judgment was obtained in good faith. The court also had to determine the appropriate remedy, including whether to order costs against Josa's representative and whether to refer the matter to the Legal Services Commissioner.

The court found that Amarino had a valid defence and that the default judgment was obtained without good faith. The court held that Josa's representative had misled Amarino, which justified setting aside the default judgment. The court ordered that the default judgment be set aside and directed Amarino to file a defence. Additionally, the court ordered that Josa's representative show cause as to why the court should not order him to pay costs on an indemnity basis and why the matter should not be referred to the Legal Services Commissioner. The matter was stood over for further argument on these issues.

The final orders included setting aside the default judgment, directing Amarino to file a defence, and ordering Josa's representative to show cause regarding costs and referral to the Legal Services Commissioner. The court also set a deadline for filing the defence and ordered that further argument on costs and referral would take place at a later date.

Orders

Orders of the court

1 Pursuant to Part 36.15 of the Uniform Civil Procedure Rules, default judgment is set aside.

2 Alternatively, pursuant to Part 36.16 of the Uniform Civil Procedure Rules, default judgment is set aside.

3 Pursuant to R 1.12, the defendants file a defence to the statement of claim on or before 17 October 2016.

4 That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following orders:

I. That Mr Yakenian pay the costs of the motion personally on an indemnity basis, payable forthwith;

II. That Mr Yakenian not seek to recover those costs from the plaintiff;

5 That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following order:

I. That the papers be referred to the Legal Services Commissioner for investigation.

6 If such show cause is filed, further argument regarding costs and referral will be heard and issues determined during the sittings commencing at Parramatta District Court on 17 October 2016.

7 Stood over for mention on 17 October 2016 at Parramatta District Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Josa Constructions Pty Ltd v Amarino Pty Ltd [2016] NSWDC 306
Hearing dates:	6 August 2016, 9 August 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Civil
Before:	Wass SC DCJ
Decision:	1 Pursuant to Part 36.15 of the Uniform Civil Procedure Rules, default judgment is set aside. 2 Alternatively, pursuant to Part 36.16 of the Uniform Civil Procedure Rules, default judgment is set aside. 3 Pursuant to R 1.12, the defendants file a defence to the statement of claim on or before 17 October 2016. 4 That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following orders: I. That Mr Yakenian pay the costs of the motion personally on an indemnity basis, payable forthwith; II. That Mr Yakenian not seek to recover those costs from the plaintiff; 5 That Mr Yakenian be given until 4pm on 14 September 2016 to show cause why the Court would not make the following order: I. That the papers be referred to the Legal Services Commissioner for investigation. 6 If such show cause is filed, further argument regarding costs and referral will be heard and issues determined during the sittings commencing at Parramatta District Court on 17 October 2016. 7 Stood over for mention on 17 October 2016 at Parramatta District Court.
Catchwords:	Civil – notice of motion – default judgment – against good faith
Legislation Cited:	Uniform Civil Procedure Rules (2005) NSW r. 36.15, r. 36.16, r. 1.12 Civil Procedure Act (2005) NSW s 56
Cases Cited:	Allesch v Maunz (2003) 203 CLR 172 Coles v Burke (1987) 10 NSWLR 429 Commonwealth Bank of Australia v Wales [2012] NSWSC 407 Grimshaw v Dunbar [1953] 1 QB 408 Hamafam Pty Ltd v Saddullah [2007] NSWSC 818 IMG of America Pty Ltd v Townsend 1983 Industry Funds Management (Nominees) Pty Limited v James Nicolas Panagopoulos and Anor [2013] NSWCSC 868 Kendell v Carnegie [2006] NSWCA 302 Magnate Projects Pty Ltd v Youma Constructions (No. 2) Pty Ltd [2005] NSWCA 331 Pope v Aberdeen Transport Co Pty Ltd Stollzhow v Calvert [1980] 2 NSWLR 749 Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR (NSW) 239 Verner v Giannaro [2016] NSWSC 242
Category:	Principal judgment
Parties:	Josa Constructions Pty Ltd (First plaintiff) Amarino Pty Ltd (First defendant) Lap Quoc Truong (Second defendant) Mainway Management Pty Ltd (Third defendant) KWC Capital Partners Pty Ltd (Fourth defendant) Dusko David Tenevski (Fifth defendant)
Representation:	Counsel: Mr Gruzman (Plaintiff) Mr Corbett (Defendants) Solicitors: Yakenian Solicitors (Plaintiff) BCP Lawyers and Consultants (Defendants)
File Number(s):	2016/188005
Publication restriction:	None