M and J Metals Pty Ltd v Yieh Phui Enterprise Co Ltd
[2007] WADC 50
•2 MARCH 2007 typed from tape and edited by Trial Judge
M & J METALS PTY LTD -v- YIEH PHUI ENTERPRISE CO LTD [2007] WADC 50
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 50 | |
| Case No: | CIV:1449/2006 | 2 MARCH 2007 | |
| Coram: | MULLER DCJ | 1/03/07 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | M & J METALS PTY LTD (ACN 067 860) YIEH PHUI ENTERPRISE CO LTD |
Catchwords: | Order 12, r 6 Rules of Supreme Court Leave given for service of summons out of jurisdiction Entry of conditional appearance Failure by defendant to apply within time for issue to be decided Judgment in default entered Subsequent application under O 12, r 7 to set aside service of writ Whether correct procedure followed |
Legislation: | Rules of Supreme Court, O 12, r 6 and O 12, r 7 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
YIEH PHUI ENTERPRISE CO LTD
Defendant
Catchwords:
Order 12, r 6 Rules of Supreme Court - Leave given for service of summons out of jurisdiction - Entry of conditional appearance - Failure by defendant to apply within time for issue to be decided - Judgment in default entered - Subsequent application under O 12, r 7 to set aside service of writ - Whether correct procedure followed
Legislation:
Rules of Supreme Court, O 12, r 6 and O 12, r 7
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr K E Yin
Defendant : Mr J Eastoe
Solicitors:
Plaintiff : James Chong Lawyers
Defendant : Jonathan Eastoe
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MULLER DCJ: By order made on 23 June 2006 the plaintiff was given leave to issue a writ of summons against the defendant indorsed with a statement of claim and to serve the notice of that writ out of the jurisdiction on the defendant at an address in Taiwan. In its statement of claim the plaintiff alleged that it entered into two agreements with the defendant to purchase quantities of metal tubes to be used in pool fencing. The two agreements were made partly in writing by the exchange of facsimile messages between the parties and partly orally in discussions between the plaintiff's agent in Perth and the defendant's agent in Taiwan. It was alleged in the statement of claim that the two agreements contained an implied term that the metal tubes would be fit for the purposes for which they were intended and of merchantable quality. Payment for the tubes was made by electronic means in Taiwan and the goods were delivered to Fremantle. The plaintiff has claimed that the tubes were defective and seeks damages from the defendant for breach of contract.
2 For some reason the civil registry divided the papers relating to this matter into two files with different numbers. The action numbered 72 of 2006 related to what has been described as the originating motion filed by the plaintiff seeking leave to serve the writ outside the jurisdiction. The other file numbered 1449 of 2006 related to what has been described as the main action. There should, of course, only have been one file because all the proceedings that were instituted by the plaintiff related to the same subject matter.
3 Be that as it may, on 10 October 2006 the defendant entered a conditional appearance to defend the action. Obviously by that time the writ of summons and the statement of claim had effectively been served upon the defendant in Taiwan. The conditional appearance was filed in the action numbered 72 of 2006. The conditional appearance was not filed in the related file bearing the number 1449 of 2006.
4 After having filed a conditional appearance the defendant did not within the time prescribed by Order 12 rule 6 apply to this Court for the issue raised by its conditional appearance to be decided. The 14 days elapsed and nothing was done. As a consequence default judgment was entered against the defendant on 21 November 2006. Two days later on 23 November 2006 the defendant issued a chamber summons to set aside Judge Deane's order and the default judgment.
5 The grounds upon which the application were made is that service of the notice of the writ out of the jurisdiction was invalid because the proposed action did not meet the criteria of Order 10 rule 1 of the Rules of
(Page 4)
- the Supreme Court. In particular, it was alleged that the action did not fall within the jurisdiction because the contract was not made within the jurisdiction, was not by its terms or implications governed by the laws of Western Australia or that a breach of the term of the contract did not occur within the jurisdiction.
6 As will be seen, a distinct procedural issue arises for consideration in this application. The defendant chose to contest the order made by Judge Deane giving the plaintiff leave to serve the writ of summons outside the jurisdiction by entering a conditional appearance pursuant to O 12, r 6 of the Supreme CourtRules. That was one method open to the defendant. The other method open to the defendant to challenge the order giving leave to serve process outside the jurisdiction is contained in O 12, r 7 of the Supreme Court Rules. This provides that a defendant to an action may at any time before entering an appearance therein serve notice of motion to set aside the writ or service of the writ or discharge any order giving leave to serve the writ out of the jurisdiction.
7 These two methods by which an application to set aside an order giving leave to a party to serve process outside the jurisdiction are commented upon by Seaman at page 4463. In his commentary the learned author says:
"There are two methods by which a party served pursuant to O 10 may apply to set aside service or discharge the leave. First, before the time for appearance, he or she may serve notice of motion under O 12 r 7 for that purpose: Australian Insurance Brokers Ltd v Hudig Langeveldt Pty Ltd [1988] WAR 44 at 46. The advantage in proceeding in that way is that the defendant is not exposed to the risk of the conditional appearance becoming unconditional because he or she did not apply within the time provided for by subr (2): Harris v Taylor [1915] 2 KB 580 at 588. Second, the entry of a conditional appearance and an application under subr (2) is also an appropriate procedure by which to set aside a writ which has been issued beyond the jurisdiction of the court: Newcombe v AME Properties Ltd (1995) 14 WAR 259 at 269. If a statement of claim pleads causes of action which are within O 10 and others which are not the court may set aside service in so far as it relates to the latter: Laminex (Aust) Pty Ltd v Coe Manufacturing Co (1998) ATPR 41-610 at 40,672.
(Page 5)
8 In this case, as I have already said, the defendant chose to enter a conditional appearance as the method by which to challenge the order made by her Honour Judge Deane. This was done on 10 October 2006. The conditional appearance, as I have already mentioned, was filed in the action numbered 72 of 2006. It is common cause that no application was made within 14 days by the defendant to set aside the order granting leave to serve process out of the jurisdiction. On account of that failure the conditional appearance entered on 10 October 2006 is deemed to operate as an unconditional appearance unless the Court otherwise orders.
9 I should digress at this stage to point out that the defendant also purported to enter a conditional appearance in the related proceedings which are the subject of file number 1449 of 2006. The memorandum of conditional appearance was purportedly entered in those proceedings on 11 January 2007. In my view, that purported entry of conditional appearance was a nullity because a conditional appearance had already been entered in the action on 10 October 2006.
10 Faced with this obstacle counsel for the defendant has drawn my attention to the Chamber summons that was filed in this Court on 23 November 2006. In his submission, putting to one side completely the issue relating to the entry of a conditional appearance, the entry of this chamber summons falls within O 12, r 7 of the Rules of the Supreme Court. He has submitted that the chamber summons is the equivalent of a notice of motion setting out the grounds upon which the order giving leave to serve the writ outside the jurisdiction ought to be set aside.
11 In Mr Eastoe's submission, this application could be made at any time before entering an appearance. Mr Eastoe has submitted that it was not strictly necessary for the defendant to proceed by way of notice of motion. In his submission, O 2, r 1(3) would allow this Court to accept the chamber summons as an adequate substitute for a notice of motion. In his submission, the proceedings cannot be defeated simply upon the ground that the defendant chose to proceed by way of chamber summons as opposed to the notice of motion procedure prescribed by O 12, r 7.
12 Be that as it may, and accepting that submission for the purposes of argument, the fact remains that if the defendant chose to proceed under O 12, r 7, he had to initiate the application, whether by notice of motion or by chamber summons, before entering an appearance therein. It is true that, on Mr Eastoe's argument, no appearance had been entered. The fact remains, however, that by this stage a judgment had already been entered. As I have pointed out, judgment was entered in default of appearance as
(Page 6)
- early as 21 November 2006, some two days before the application to set the proceedings aside was made.
13 Order 12, r 5 of the Rules of the Supreme Court stipulates that a defendant may not enter an appearance in an action after judgment has been entered. That particular provision is, in my view, critical. That particular provision must have an effect upon any interpretation placed upon O 12, r 7. The fact that judgment had been entered is, in my view, an absolute and immovable obstacle to the defendant attempting to seek relief under O 12, r 7. I accept Mr Yin's argument in this regard that the entry of judgment constitutes an absolute bar to the defendant seeking the order that it now wishes to obtain.
14 I should also point out, of course, that the notice of motion under O 12, r 7 must be served before the time for appearance has elapsed. The time for appearance must refer to the time within which a defendant is required to enter an appearance within the Rules of Court. That was not done here. So, in my view, it is impossible to escape the application of the various provisions of the rules which I have referred to. In my view, the defendant failed to adopt the correct procedure and that, having entered a conditional appearance, he should have applied within 14 days or sought the leave of the Court under that section for the order made by Judge Deane to be set aside. That was never done.
15 In my view, it is not open to the defendant at this stage to argue that the second type of procedure envisaged by the Rules can be invoked. It is not open to the defendant to argue that it can proceed by virtue of O 12, r 7 and, even if that argument were open, the provisions of that particular order have, in my view, not been complied with.
16 Having reached those findings, it is not necessary for me to go into the merits of the case and, in any event, counsel for the plaintiff did not seek to base his opposition to this application on the alleged merits of the plaintiff's claim. I do not propose to make any comments in relation to the merits. The application is refused for the reasons I have given.
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