| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MAURICE FREDERICK LAW, CHERYL LAW AND SPUNTER PTY LTD -v- HALL [2005] WADC 75 CORAM : GROVES DCJ HEARD : 1 APRIL 2005 DELIVERED : Delivered Extemporaneously on 1 APRIL 2005 typed from tape and edited by Trial Judge FILE NO/S : CIV 2509 of 2002 BETWEEN : MAURICE FREDERICK LAW, CHERYL LAW AND SPUNTER PTY LTD Plaintiffs
AND
NANCY CLOONAN HALL
Defendant
Catchwords: Practice - Western Australia - Application to set aside default judgment - Turns on own facts
Legislation: Rules of the Supreme Court, O 13, r 10
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Result:
Application dismissed Representation:
Counsel:
Plaintiffs : Mr S O'Brien
Defendant : In person
Solicitors:
Plaintiffs : Robertson Hayles
Defendant : Not applicable
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 GROVES DCJ: The application was brought before the Court by way of Chamber summons by the defendant, making application to set aside a judgment which was entered against her on 10 October 2002. The Chamber summons is supported by the affidavit of the defendant, which appears to have been sworn on 1 March 2005. It is perhaps useful to outline the history of this matter as I understand it from the court file.
2 On 10 September 2002, a writ was issued by the plaintiffs against the defendant claiming liquidated damages. On 20 September 2002 it appears that the writ was served on the defendant by a Mr Pooley who deposed in his affidavit as to effective service of the writ on the defendant. On 10 October 2002, judgment in default of appearance was entered by the plaintiffs against the defendant in the sum of $144,871.47 for the claim, $690.62 for interest and $777 for costs. Following that, on 21 October 2002 a writ of fieri facias was issued by the plaintiffs in respect of the judgment amount. 3 On 28 October 2003, the writ of fieri facias was returned by the bailiff unexecuted, that is, no moneys were able to be levied by him under the writ, and the writ of fieri facias had expired on 20 October 2003. On 4 November 2003, a writ of fieri facias against land was filed and from the stamp endorsed on the writ on the court file it would appear that it was received by the Registrar of Titles on 10 November 2003. Then on 9 February 2005 a fresh writ of fieri facias against land was filed. On 2 March 2005, the defendant filed a Chamber summons to set aside the default judgment. The application was supported by an affidavit in similar terms as the affidavit before me now. 4 On 8 March 2005, the defendant's application was dismissed by a Registrar of this Court, there having been no appearance by the defendant on that occasion. She apparently attended the Court later that day or on the day following and was advised that she should make a fresh application and it is that application which is before me now. The application was filed on 18 March 2005. On 21 March it was adjourned to the general Chambers list for today. The Rules of the Supreme Court which govern the making of such applications provide by O 13, r 10 that the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this order, that is, O 13. 5 In his commentary contained in Civil Procedure Western Australia at paragraph 13.10.4, Setting Aside Irregular Judgments, and 13.10.6, Setting Aside Regular Judgments, Seaman J, as he then was, touches on
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the matters which need to be deposed to before a court will accede to an application to set aside a judgment. 6 The plaintiff, not in her affidavit, but in submissions which have been filed which are dated 18 March 2005 and a further outline of submissions dated today, 1 April 2005 raises the issue as to whether or not judgment had been regularly entered, that is, suggesting that the judgment was irregular. As I have strongly made the point to the defendant, as much as I can have regard to so far as the application is concerned and the matters of which I must be satisfied is that which is contained in the affidavit. 7 The submissions are not evidence. The submissions received by the Court should confine themselves to the matters raised in the context of what is said in the affidavit. In the submissions lodged there is a lot of irrelevant matter so far as the matters deposed to in the affidavit are concerned. The outline of submissions raised matters which are not relevant in the context of this application. 8 What is required in supporting an application to set aside a judgment is that there should be an explanation for the delay in making such an application and the longer the delay, it becomes a more weighty matter to be considered. 9 The delay in making application, although not fatal to an application, is a matter to be taken into account in the exercise of the court's discretion. As Seaman says at paragraph 13.10.6: The general rule is that when a judgment of default has been regularly entered, it is not to be set aside unless the Court is satisfied that there is a defence on the merits and instances of departure from the general rule are rare. The application should be supported by affidavit evidence which discloses a defence on the merits and explains the failure to comply with the rules and any delay in bringing the application. The defendant must present a credible defence demonstrating that if the default judgment were set aside and the matter were argued on its merits the defendant would have a real prospect of success. 10 In considering what is required for this application, having regard to the evidence of the defendant in her affidavit, I am not satisfied that any adequate explanation has been advanced insofar as the issue of delay is concerned. I am satisfied also that on the affidavit there is no sufficient
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information or evidence which suggests that any credible defence is raised insofar as the issues the subject of the judgment are concerned. 11 Ms Hall has indicated that she perhaps wants to call other evidence and witnesses to give evidence of other matters. Again, as I say, such matters as may be identified in the submissions which are not the subject of the basis of the application would be irrelevant. In my view no purpose whatsoever would be served in adjourning the application off to another appointment. The plaintiffs have a judgment which on the face of it was regularly obtained and regularly obtained some two and a half years ago. They have taken steps to protect that judgment by registering a writ of fi fa against land and in the face of the information which is before me there is no basis upon which I could set aside that judgment. |