CITATION: Magnate Projects Pty. Ltd. v. Youma Constructions (No.2) Pty. Ltd. [2005] NSWCA 331
HEARING DATE(S): 9 September 2005
JUDGMENT DATE:
26 September 2005JUDGMENT OF: Handley JA at 1; Hodgson JA at 20; Campbell AJA at 77
DECISION: 1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed, and order of 24 June 2005 setting aside Master Macready's judgment set aside. 3. In lieu thereof:(a) Provided Youma and/or Mr. Marsh pay Magnate $20,000.00 on account of costs within 28 days as required by par.(c), Master Macready's judgment set aside. (b) It is a condition of this order that Youma not apply for security for costs against Magnate beyond an order that may be satisfied by Mr. Luu becoming personally liable for Magnate's costs incurred after this date. (c) Youma (as well as Mr. Marsh) to pay Magnate's costs (i) thrown away by reason of the judgment made on 23 March 2005 being set aside, and (ii) the costs of the Notice of Motion filed on 7 June 2005, on an indemnity basis, such costs to be borne by Mr. Marsh as between himself and Youma, $20,000.00 to be paid on account of such costs within 28 days. 4. Youma to pay Magnate's costs of the application and the appeal, and to have a Suitors' Fund Act certificate if otherwise eligible.
CATCHWORDS: PROCEDURE - Judgment obtained after hearing in absence of defendant - Absence of defendant due to gross default of solicitor - Judgment set aside - Onus on defendant to show defence on the merits - Whether affidavit verifying defence is evidence in support of such defence - Relevance of prejudice to plaintiff and principal of plaintiff - Appropriate conditions on setting aside such a judgment.
LEGISLATION CITED: Property Stock & Business Agent Act 2002, ss.3, 9.
CASES CITED: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
House v The King (1936) 55 CLR 499
Taylor v Taylor (1979) 143 CLR 1
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156, 177PARTIES: Magnate Projects Pty. Ltd. - claimant
Youma Constructions (No.2) Pty. Ltd. - opponentFILE NUMBER(S): CA 40602/05
COUNSEL: Mr. D. Allen for claimant
Mr. R. Horsley with Ms. L. Dive for opponentSOLICITORS: J. Kekatos Lawyers, Parramatta for claimant
Paul Marsh, Strathfield for opponent
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): ED50050/04
LOWER COURT JUDICIAL OFFICER: Master Macready
CA40602/05
ED 50050/04Monday 26 September 2005HANDLEY JA
HODGSON JA
M.W. CAMPBELL AJA
Judgment
1 HANDLEY JA: I have had the benefit of reading the reasons for judgment of Hodgson JA in draft. He has set out the history of the litigation, the material facts, and the issues raised on this application. I…
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- Case
- [2005] NSWCA 331
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the Master erred in setting aside the default judgment, the onus on the defendant to demonstrate a defence on the merits, the evidentiary weight of an affidavit verifying a defence, and the relevance of prejudice to the plaintiff and the principal of the plaintiff when considering setting aside such a judgment. The court also considered the appropriate conditions to be imposed when setting aside a judgment obtained due to a solicitor's default.
The Court of Appeal found that the Master had erred in setting aside the judgment. It held that while a defendant bears the onus of showing a defence on the merits, an affidavit verifying the defence is indeed evidence in support of that defence. The court also considered the prejudice to the plaintiff and the principal of the plaintiff, but ultimately determined that the circumstances warranted setting aside the judgment, albeit with significant conditions. The appeal was allowed, and the Master's order was set aside and replaced with new orders. These orders included a requirement for Youma Constructions and Mr. Marsh to pay Magnate Projects $20,000 on account of costs within 28 days, and further conditions regarding security for costs and payment of specific costs on an indemnity basis.
Orders
Orders of the court
1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed, and order of 24 June 2005 setting aside Master Macready's judgment set aside. 3. In lieu thereof:(a) Provided Youma and/or Mr. Marsh pay Magnate $20,000.00 on account of costs within 28 days as required by par.(c), Master Macready's judgment set aside. (b) It is a condition of this order that Youma not apply for security for costs against Magnate beyond an order that may be satisfied by Mr. Luu becoming personally liable for Magnate's costs incurred after this date. (c) Youma (as well as Mr. Marsh) to pay Magnate's costs (i) thrown away by reason of the judgment made on 23 March 2005 being set aside, and (ii) the costs of the Notice of Motion filed on 7 June 2005, on an indemnity basis, such costs to be borne by Mr. Marsh as between himself and Youma, $20,000.00 to be paid on account of such costs within 28 days. 4. Youma to pay Magnate's costs of the application and the appeal, and to have a Suitors' Fund Act certificate if otherwise eligible.
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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