| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MCAULIFFE WILLIAMS & PARTNERS (A FIRM) -v- PECOULT [2002] WADC 133 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 6 JUNE 2002 DELIVERED : 1 JULY 2002 FILE NO/S : CIV 3107 of 2001 BETWEEN : MCAULIFFE WILLIAMS & PARTNERS (A FIRM) Plaintiff
AND
SERGE PECOULT
Defendant
Catchwords: Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to set aside judgment in default of defence - Turns on its facts
Legislation: Nil
Result: Application successful
(Page 2)
Representation:
Counsel:
Plaintiff : Mr R C Ioppolo
Defendant : Mr D F Gordon
Solicitors:
Plaintiff : McAuliffe Williams & Partners
Defendant : Gordons
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 DEPUTY REGISTRAR HARMAN: The plaintiffs' claim is for a liquidated sum representing the cost of services rendered pursuant to an agreement between the parties.
2 Judgment was entered in default of defence and the defendant now seeks to have it set aside. The onus is on the defendant to establish that there is a good reason to do so. The jurisdiction provided by the rules is not qualified. In considering the exercise of discretion it is appropriate to consider the circumstances in which the judgment was entered, the circumstances in which the application is made and the merits of the substantive issues raised by the defendant. 3 The application was made one month after judgment was entered. It appears to be the case that at the relevant time the defendant was seeking to discuss the subject of the action with the plaintiffs. In the circumstances, it is appropriate to focus upon the substantive issue raised by the defendant, that is the identity of the party responsible for payment of the plaintiffs' fee. 4 The significant features of the plaintiffs' pleading are as follows: "2. On 29 January 2001 at the offices of the plaintiff, the plaintiff, by its authorised representative Mr Kerry McAuliffe, and the defendant entered into an oral agreement under which the plaintiff was to act as solicitors for the defendant with respect to commercial disputes involving the following parties:- (Thereafter follows a list which comprises the defendant himself, a number of corporate entities including various registered overseas and a named person.) 3. Pursuant to the agreement the plaintiff provided the defendant with legal services and rendered invoices for those services." 5 Ultimately, the plaintiffs give particulars of a number of unpaid invoices rendered to the defendant. 6 At par 4 of his affidavit filed 31 May 2002, the defendant recites par 2 of the plaintiffs' pleading. He continues: "5. This assertion is not true. On the meeting of 29 January 2001, the discussions I had with
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Mr K McAuliffe pertained to the statutory demands to be issued by AC.C.U.E. Pty Ltd against PPB Precast Systems (WA) Pty Ltd for $203,475.93, Construction Plant Hire (WA) Pty Ltd as trustee for the Martinazzo Family Trust t/as Tom's Crane & Plant Hire for $463,663.69 and PPB Precast Systems (WA) Pty Ltd for $113,080. 6. I swore the affidavits relating to the respective debts outline (sic) in paragraph 5 on behalf of ACCUE on 13 March 2001. 7. After the statutory demands were issued I had another meeting with Mr K McAuliffe at which time I was informed that the various debtor companies were to apply to set aside the statutory demands. It was at this time, 21 March 2001, on behalf of ACCUE, I executed the agreement which is exhibited as Annexure 1 to the affidavit of Robert Carl Ioppolo sworn 14 March 2002 in order to oppose the application to set aside the statutory demands." 7 The statement that the allegation of material fact is not true is a conclusion supported only to the extent of the balance of my quotation from the evidence and it ought not be considered to be more than the defendant's comment upon the pleading. 8 As to the balance of the defendant's affidavit there is no evidence to indicate whether what he describes as discussions were the same interactions that the plaintiff would contend would found the agreement pleaded. 9 The authority to issue any relevant statutory demand in relation to the claims of Accue could only emanate from Accue. In the context portrayed at par 5 prima facie it ought to be accepted that the defendant represented Accue. That does not preclude the prospect that the defendant entered into the agreement for which the plaintiffs contend. 10 The plaintiffs have chosen to file an affidavit of K McAuliffe. The only evidence he gives as to the events of 29 January 2001 is that the defendant told him his residential and postal addresses. Otherwise at par 6 he states:
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"I did not make on behalf of the plaintiff any agreement with the defendant to the effect that the defendant would not be personally liable for payment of the plaintiff's professional fees for providing legal services to the defendant." 11 That conclusion is unsupported. In the context that I have recognised it is of no utility other than to reveal that the deponent and I hold different views as to the prima facie position. Ultimately in determining the application I am persuaded that in so far as fees were generated by the plaintiffs in relation to the statutory demands there is a sufficient basis to justify setting aside the judgment. 12 There is no evidence as to the discrete services provided by the plaintiffs. There is sufficient evidence for me to recognise that in all probability some of the relevant services provided by the plaintiffs related to matters other than the statutory demands. At the hearing the plaintiffs promoted the submission that in the event that the defendant was successful in relation to the services which relate to the statutory demands, judgment should stand for the balance. 13 The difficulty that I have with that proposition is that there is no basis upon which I could make any such determination. 14 During the course of the submissions the regularity of the judgment was canvassed. Apart from the issue of identity the only matters which bear upon that issue were the prospect of the agreement having been in writing and entered into on a different date. In my opinion, it is appropriate to consider that the plaintiffs have simply pleaded a cause of action for which they obtained judgment. 15 There is no basis for a determination that the judgment was irregular. 16 Accordingly, it is my view that the judgment entered was regular but that there is sufficient evidence to justify the action being determined upon the evidence.
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