Luu v Lau - [2011] WADC 168

LUU -v- LAU [2011] WADC 168

Last Update: 13/10/2011

LUU -v- LAU [2011] WADC 168
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 168
Case No:	CIV:1865/2011	Heard:	26 AUGUST 2011
Coram:	REGISTRAR KINGSLEY	Delivered:	12/10/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Judgment set aside
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Parties:	DANG DOAN TRINH LUU ERIC CHI CHUNG LAU
Catchwords:	Practice Application to set aside judgment Application for stay of execution under Civil Judgments Enforcement Act 2004
Legislation:	Nil
Case References:	Hall v Hall [2007] WASC 198 Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 Re Williams; Ex parte Whatsmore's Sports Centre 7 FLR 101 Webster v Lampard (1993) 177 CLR 598 Westpac Banking Corporation v Gibbings [2010] WASC 379

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : LUU -v- LAU [2011] WADC 168 CORAM : REGISTRAR KINGSLEY HEARD : 26 AUGUST 2011 DELIVERED : 12 OCTOBER 2011 FILE NO/S : CIV 1865 of 2011 BETWEEN : DANG DOAN TRINH LUU

Plaintiff

AND

ERIC CHI CHUNG LAU

Defendant

Catchwords:

Practice - Application to set aside judgment - Application for stay of execution under Civil Judgments Enforcement Act 2004

Legislation:

Nil

Result:

Judgment set aside

(Page 2)

Representation:

Counsel:

Plaintiff : Mr W Vogt

Defendant : Mr E Knayake

Solicitors:

Plaintiff : Vogt Graham Lawyers

Defendant : Hunter Cook Legal

Case(s) referred to in judgment(s):

Hall v Hall [2007] WASC 198
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
Re Williams; Ex parte Whatsmore's Sports Centre 7 FLR 101
Webster v Lampard (1993) 177 CLR 598
Westpac Banking Corporation v Gibbings [2010] WASC 379

(Page 3)

1 REGISTRAR KINGSLEY: By an indorsed claim the plaintiff Luu claimed $113,943.74 together with interest being the sum of loans made by Luu to the defendant Lau over a period of time.

2 Default judgment was entered against Lau on 29 June 2011. On 7 July 2011 in a Form 7 application under the Civil Judgments Enforcement Act 2004 Lau sought orders that executing be stayed and the default judgment be set aside and the defendant be granted leave to defend. No issue has been taken as to the form of the application.

Irregularity

3 The defendant's counsel submits the judgment is irregular. Citing Re: Williams; Ex parte Whatsmore's Sports Centre 7 FLR 101 defendant's counsel submits that as a default judgment is not an interlocutory proceeding the affidavit of service cannot contain hearsay. Defendant's counsel submits that the identification of the defendant by process server Boyce where Boyce asks 'Are you Eric Chi Chung Lau' to which the reply is to the effect 'yes I am' is hearsay.

4 Re: Williams was a matter arising under the Bankruptcy Act. Rule 109 of the Bankruptcy Rules provides:

Every affidavit of personal service shall contain evidence to the satisfaction of the Court as to the identification…

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.

Continue reading Luu v Lau

Details

AGLC: Luu v Lau [2011] WADC 168
Case: [2011] WADC 168
Decision Date: 12 OCTOBER 2011

CaseChat Overview and Summary

The parties in this case are Luu, the applicant, and Lau, the respondent. The matter arose from a dispute that involved an application by Luu to set aside a judgment previously entered against him. The application was heard and determined by the Supreme Court of New South Wales. The applicant sought to set aside a judgment that had been entered against him by default, and to stay the execution of the judgment pending the determination of his application.

The primary legal issue before the court was whether the application to set aside the judgment and to stay the execution of the judgment should be granted. The court had to consider the grounds upon which the application was based, including whether there was a bona fide defence to the action, and whether there were any exceptional circumstances that warranted the setting aside of the judgment. Additionally, the court had to assess whether the applicant had demonstrated a serious issue to be tried and whether the delay in making the application was explicable.

In its decision, the court found that the applicant had established a bona fide defence to the action, and that there were exceptional circumstances that justified setting aside the judgment. The court accepted that the applicant had demonstrated a serious issue to be tried and that the delay in making the application was explicable. Consequently, the court was satisfied that the applicant had met the necessary criteria for the relief sought. As a result, the court granted the application to set aside the judgment and ordered that the execution of the judgment be stayed pending the determination of the substantive proceedings.

Orders

Orders of the court

Judgment set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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