Kovacic v A&S Powersellers Pty Ltd - [2022] VSC 77

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03669

ZORAN KOVACIC	Plaintiff
v
A&S POWERSELLERS PTY LTD (ACN 119 520 133)	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

---

JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2021
DATE OF JUDGMENT:	24 February 2022
CASE MAY BE CITED AS:	Kovacic v A&S Powersellers Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 77

---

PRACTICE AND PROCEDURE – Application for judicial review of refusal by Magistrate to set aside default judgment – Special circumstances for extension of time to bring late application found - Second application to set aside default judgment made on same grounds - Grounds for judicial review not made out – Second application bound to fail – Magistrates’ Court Act 1989, ss 110(1) and 110(2) – Magistrates’ Court General Civil Procedure Rules 2010, rr 21.02 and 46.10 - Maxwell v Keun [1928] 1 KB 645 - Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 -Kostokanellis v Allen (1974) VR 596 - Taylor v Taylor (1978-1979) 143 CLR 1 - Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff in person	And by his McKenzie friend, Mr C Fitzgerald
For the First Defendant	MST Lawyers
No appearance for the Second Defendant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Factual background........................................................................................................................... 1

The Goods...................................................................................................................................... 1
Magistrates’ Court Complaint..................................................................................................... 2
The First Application.................................................................................................................... 3
The Second Application............................................................................................................... 4

Application for judicial review....................................................................................................... 4

Preliminary matters........................................................................................................................... 5

Summary judgment application................................................................................................. 5
Leave to appear............................................................................................................................. 6
Extension of time........................................................................................................................... 8
Consideration................................................................................................................................ 9
Special circumstances principles....................................................................................... 9

Judicial review - applicable statutory provisions and legal principles................................. 10

The First Application...................................................................................................................... 13

Hearing of the First Application............................................................................................... 15
Grounds for judicial review....................................................................................................... 19
Consideration.............................................................................................................................. 20
Ground 1: Incorrect application of law.......................................................................... 20
Grounds 2 and 3: Denial of natural justice and bias..................................................... 21
Ground 4: Failure to consider evidence and matters................................................... 26

The Second Application................................................................................................................. 26

Hearing of the Second Application.......................................................................................... 26
Grounds for judicial review....................................................................................................... 28
Consideration.............................................................................................................................. 30

HIS HONOUR:

Introduction

This proceeding concerns the decisions of the Magistrates’ Court made on 6 March 2020 and 17 July 2020, each refusing Mr Kovacic’s application to set aside a default judgment entered against him on 25 January 2019. The Magistrates’ Court proceeding in which the judgment was entered concerned a debt, said to be owed by Mr Kovacic to A&S Powersellers (Powersellers), for the purchase price of a camper trailer.

On 25 January 2019, the Registrar at the Magistrates’ Court of Victoria entered default judgment against Mr Kovacic after he failed to give notice of defence within 21 days pursuant to r 21.02(b) of the Magistrates’ Court General Civil Procedure Rules 2010 (Magistrates’ Court Rules).

Mr Kovacic applies in this Court for relief in the nature of:

(a) certiorari, quashing the orders of Magistrate Burns and…

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 Kovacic v A&S Powersellers 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: [2022] VSC 77
Decision Date: 24 February 2022

CaseChat Overview and Summary

In the case of Kovacic v A&S Powersellers Pty Ltd, the applicant sought judicial review of the decision of a Magistrate to refuse an application to set aside a default judgment. The application was brought under the Magistrates’ Court Act 1989 and the Magistrates’ Court General Civil Procedure Rules 2010. The primary dispute was the refusal by the Magistrate to set aside a default judgment entered against the applicant. The case was heard in the Supreme Court of Victoria.

The legal issues the court had to decide were whether the special circumstances existed to justify an extension of time to bring the late application, and whether the grounds for judicial review had been made out. The applicant argued that special circumstances existed to warrant an extension of time, as the delay in bringing the application was due to their lack of legal representation and the complexity of the case. The applicant also argued that the grounds for judicial review had been made out, as the Magistrate had failed to exercise their discretion properly in refusing to set aside the default judgment.

The court held that special circumstances did exist to justify an extension of time to bring the late application. However, the court found that the grounds for judicial review had not been made out. The court held that the Magistrate had exercised their discretion properly in refusing to set aside the default judgment, as the applicant had failed to provide any evidence to support their application. The court also held that the second application to set aside the default judgment was bound to fail, as it was made on the same grounds as the first application. The court cited several authorities in support of its decision, including Maxwell v Keun, Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd, Kostokanellis v Allen, Taylor v Taylor, and Carr v Finance Corporation of Australia Ltd (No. 1).

The court dismissed the application for judicial review and ordered the applicant to pay the respondent’s costs of the application. The court found that the applicant had not demonstrated any special circumstances that warranted an extension of time to bring the late application, and that the grounds for judicial review had not been made out. The court also held that the second application to set aside the default judgment was bound to fail, as it was made on the same grounds as the first application. The court’s decision was final and binding on the parties.

Orders