Kimberley Building Supplies Pty Ltd v Hansen
[1999] WADC 166
•5 DECEMBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KIMBERLEY BUILDING SUPPLIES PTY LTD -v- HANSEN & ORS [1999] WADC 166
CORAM: BLAXELL DCJ
HEARD: 15 DECEMBER 1999
DELIVERED : Delivered Extemporaneously on 15 DECEMBER 1999 typed from tape and edited by Trial Judge.
FILE NO/S: CIV 4327 of 1998
BETWEEN: KIMBERLEY BUILDING SUPPLIES PTY LTD
Plaintiff
AND
BARRY GRAHAM HANSEN
GARY JOSEPH McNAMARA
JOHN CRAIG GAMBLE
PETER JOHN HILL
IAN JAMES ANDERSON
PETER COLIN GREGG
HORWATH NT PTY LTD
First DefendantsBARRY GRAHAM HANSEN
Second Defendant
Catchwords:
Practice and procedure - Judgment in default of appearance - Appeal from decision refusing to set aside - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed - Judgment set aside
Representation:
Counsel:
Plaintiff: Mr R W Richardson
First Defendants : Ms M J Watson
Second Defendant : Ms M J Watson
Solicitors:
Plaintiff: R W Richardson
First Defendants : Hotchkin Hanly
Second Defendant : Hotchkin Hanly
Case(s) referred to in judgment(s):
Gardam v George Willis and Co Ltd (1988) 82 ALR 415
Case(s) also cited:
Nil
BLAXELL DCJ: This is an appeal from the decision of Deputy Registrar Harman refusing an application to set aside a judgment obtained in default of a memorandum of appearance being filed. The action was commenced by the plaintiff against a total of eight defendants, the first seven of those defendants being collectively known as the first defendants, and one of those first defendants being also the second defendant.
The hearing today is a hearing de novo and I must consider the matter afresh based upon the materials that are now before me. In this regard I have the benefit of some four further affidavits which have been filed by leave and set out various materials and contentions.
The default judgment against the second‑named first defendant was obtained upon him failing to file a memorandum of appearance. I have ample materials available to me to show that there is a satisfactory explanation for his failure to file the appearance. He, at all times, intended to defend the claim but after initially instructing his own solicitors it was considered that the matter should be referred to the first and second defendants' insurer.
Other solicitors were appointed by the insurer and because of some confusion between the two sets of solicitors as to who was doing what the need to file a memorandum of appearance was overlooked. So that has been satisfactorily explained and really the issues before me today are firstly whether or not there is an arguable defence, and secondly (given that I have unfettered discretion to set aside the default judgment) whether or not in any event justice necessitates the default judgment being set aside.
In argument before me today, counsel for the second‑named first defendant has raised a total of some five defences which are said to be arguable. I have considered each of those and the view I take is that at least one of them is in fact arguable. The defence I consider to be arguable is the proposition that the representations alleged to have been made by the second defendant on behalf of himself and the first defendants were in fact not representations but merely a "message" being passed on from the company known as Easy‑Built through to the plaintiff. In that regard I have been referred to a decision of French J in Gardam v George Willis and Co Ltd (1988) 82 ALR 415 where his Honour said:
"The innocent carriage of a false representation from one person to another in circumstances where the carrier is and is seen to be a mere conduit does not involve him in making that representation."
When one has regard to the statement of claim, it is clear that the alleged representations in part are said to have been made not only orally but also in a facsimile subsequently sent by the second defendant to the plaintiff. When one examines the terms of that facsimile it reads:
"I confirm that Easy‑Built Pty Ltd has instructed me that Kimberley Building Supplies are to be the first creditor paid from the proceeds of the claim to Homeswest for work at Looma."
In its explicit terms, if one was to look only at the actual phraseology used in that facsimile, it clearly was a passing on of instructions rather than a representation by the second defendant. At the very least, the phraseology gives rise to an arguable defence and I think the contents of the facsimile also have potential to colour the context in which the remaining oral assertions were made (in terms of whether they were representations or merely the passing on of instructions from Easy‑Built to the plaintiff). So there is, in my view, an arguable defence based upon that issue alone.
In addition to that, we have a particular situation where the second‑named first defendant cannot personally vouch for or have personal knowledge as to whether or not the representations were in fact made. He was not party to them at the time in the sense of knowing that they were happening and was not in any way directly involved in the relevant conversations.
He is also in the situation where all of his former partners in the alleged firm or partnership have all filed defences. The second defendant who is the alleged representor has filed a defence denying having made the representations. It follows that if the judgment in default is allowed to stand, one of the possible outcomes is that the Court might not be satisfied the representations were made (and thus dismiss the claim against the other defendants) leaving the second‑named first defendant in a sense holding the baby.
That of itself, would lead to an injustice and I think that in these circumstances which are peculiar to these particular proceedings, the default judgment must in any event be set aside. So for those two reasons I have decided the default judgment should be set aside and the appeal will be allowed.
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