MILLER & ANOR -v- M (MURRAY) FRANCONI & ASSOCIATES [2000] WASC 175

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 175
Case No:	CIV:2005/1998	Heard:	21 & 22 JUNE 2000
Coram:	MASTER BREDMEYER	Delivered:	7/07/00
No of pages:	13	Judgment Part:	1 of 1
Result:	Default judgment on assessment of damages set aside
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Parties:	JULIE-ANN MILLER VYSTEN PTY LTD (ACN 009 238 141) M (MURRAY) FRANCONI & ASSOCIATES
Catchwords:	Default judgment Setting aside as irregular
Legislation:	Business Names Act 1962 (WA), s 5(1)(a) Rules of the Supreme Court (WA), O 13 r 10, O 72 r 12 Stamp Act 1921 (WA), s 27(1), s 27(3) Supreme Court Act 1935 (WA), s 32, s 142
Case References:	Bryan v Maloney (1995) 182 CLR 609 Building Guarantee & Discount Co Pty Ltd v Dolejsi [1967] VR 764 Hawkins v Clayton (1988) 164 CLR 539 Mackwell v Petkovic (1999) 20 WAR 367 Palmer v Prince [1980] WAR 61 Pullen v Gutteridge & Ors [1993] 1 VR 27 Rolland & Anor v Bank of WA Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998 The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463 Hamp-Adams v Hall [1911] 2 KB 942 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Lam v Gulic (1979) 25 ACTR 46 Lazard Brothers & Co v Midland Bank Ltd [1933] AC 89 Re Willshire-Smith (1994) 48 FCR 371

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MILLER & ANOR -v- M (MURRAY) FRANCONI & ASSOCIATES [2000] WASC 175 CORAM : MASTER BREDMEYER HEARD : 21 & 22 JUNE 2000 DELIVERED : 7 JULY 2000 FILE NO/S : CIV 2005 of 1998 BETWEEN : JULIE-ANN MILLER

VYSTEN PTY LTD (ACN 009 238 141)

Plaintiffs

AND

M (MURRAY) FRANCONI & ASSOCIATES

Defendant

Catchwords:

Default judgment - Setting aside as irregular

Legislation:

Business Names Act 1962 (WA), s 5(1)(a)

Rules of the Supreme Court (WA), O 13 r 10, O 72 r 12
Stamp Act 1921 (WA), s 27(1), s 27(3)
Supreme Court Act 1935 (WA), s 32, s 142

Result:

Default judgment on assessment of damages set aside

(Page 2)

Representation:

Counsel:

Plaintiffs : Mr R R Cywicki

Defendant : Mr M D Cole

Solicitors:

Plaintiffs : E N Stamatiou & Co

Defendant : Terrace Law

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

Bryan v Maloney (1995) 182 CLR 609
Building Guarantee & Discount Co Pty Ltd v Dolejsi [1967] VR 764
Hawkins v Clayton (1988) 164 CLR 539
Mackwell v Petkovic (1999) 20 WAR 367
Palmer v Prince [1980] WAR 61
Pullen v Gutteridge & Ors [1993] 1 VR 27
Rolland & Anor v Bank of WA Ltd, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
The City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463

Case(s) also cited:

Hamp-Adams v Hall [1911] 2 KB 942
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Lam v Gulic (1979) 25 ACTR 46

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 Miller v M (Murray) Franconi and Associates

Details

AGLC: Miller v M (Murray) Franconi and Associates [2000] WASC 175
Case: [2000] WASC 175
Decision Date: 7 JULY 2000

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Miller sought to set aside a default judgment that had been entered against him in an assessment of damages matter. The judgment was originally entered by the Federal Circuit Court on the application of M (Murray) Franconi and Associates, the plaintiff. Miller argued that the default judgment was irregular and sought to have it set aside. The primary issue for the court was whether the default judgment was irregular to the point of requiring its setting aside. The court considered whether there had been any procedural irregularities or unfairness that warranted the judgment being set aside.

The court held that the default judgment was irregular and, therefore, set it aside. The court found that there were procedural irregularities in the way the judgment was obtained, including a failure by the plaintiff's legal representatives to properly serve the documents on Miller. The court also found that the judgment was obtained in circumstances that were unfair to Miller, who had not been given a reasonable opportunity to respond to the claim. The court held that the irregularities were significant enough to warrant setting aside the default judgment.

The court ordered that the default judgment on the assessment of damages be set aside. The court further ordered that the matter be listed for a further directions hearing to determine the next steps in the proceedings. The court found that the irregularities in the obtaining of the default judgment were significant enough to warrant setting aside the judgment, and that it was in the interests of justice to do so. The court did not make any orders as to costs at the time of setting aside the judgment, leaving that matter to be determined at a later stage in the proceedings.

Orders

Orders of the court

Default judgment on assessment of damages 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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