Monkton v Stephenson - [2011] NSWSC 67

Supreme Court

New South Wales

Medium Neutral Citation: STEPHEN RESKYMER (KYM) MONKTON v EDWARD ALLAN STEPHENSON & ANOR [2011] NSWSC 67
Hearing dates: Friday 10 December 2010
Decision date: 23 February 2011
Before: Hall J
Decision:
(1) Appeal allowed.
(2) The Magistrate's decision and order made on 21 June 2010 are set aside.
(3) The proceedings are remitted to the Local Court for the determination of quantum of damages in respect of the loss or destruction of the plaintiff's vehicle identified in paragraph 1 of the annexure to the statement of claim filed in the Local Court at Coonabarabran on 20 October 2008 and any claim for interest).

Catchwords: STRIKING OUT - notice of motion - Local Court Judgment set aside - motor vehicle accident caused by negligently kept livestock - default judgment on non-attendance of plaintiff - striking out of defence
ENFORCEMENT - stay of legal advice for plaintiff prior to default judgment - s.56 Uniform Civil Procedure Act - prejudice to creditor where monies already dispersed - error of law - default judgment of liquidated damages where claim for unliquidated damages - judgment in default obtained irregularly - to be set aside ex debito justitiae - no arguable case on liability - damages to be particularised in unambiguous terms - Local Court to re-determine damages
Legislation Cited: Local Court Act 2007
Cases Cited: Gemini Property Investments Pty Limited v Woodwards Investments Pty Limited [2000] SASC 210
Watson v Anderson (1976) 13 SASR 329
Category: Principal judgment
Parties: STEPHEN RESKYMER (KYM) MONKTON v EDWARD ALLAN STEPHENSON & ANOR
Representation: Counsel:
P: G Niven
D: D A Wetmore
Solicitors:
P: S E O'Connor
D: D A Wetmore

File Number(s): 10/240423

Judgment

HIS HONOUR : These proceedings concern the refusal of a Magistrate to set aside a default judgment entered on 26 February 2009 against the plaintiff, Mr Stephen Monkton, in favour of the first defendant, Edward Allan Stephenson, in the amount of $59,830.44 entered on 26 February 2009.

The present proceedings

The plaintiff commenced proceedings in this Court by Summons and at the hearing proceeded by way of an Amended Summons filed on 13 August 2010. In it he seeks orders, inter alia, that the judgment of the Local Court given on 21 June 2010 on his notice of motion be set aside and further that the default judgment entered on 26 February 2009 to which the notice of motion related, be set aside to enable a defence to be filed.

The proceedings by way of appeal have been brought pursuant to the provisions of s.39 of the Local Court Act 2007 which permits an appeal as of right in respect of a question of law. Section 39(1) provides:-

"A party to proceedings before the Court sitting in its General Division who is dissatisfied with the judgment or order of the Court may appeal to the Supreme Court, but only on a question of law."

History of the proceedings

The cause of action originally pleaded in a Statement of Claim…

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 Monkton v Stephenson

Details

AGLC: Monkton v Stephenson [2011] NSWSC 67
Case: [2011] NSWSC 67
Decision Date: 23 February 2011

CaseChat Overview and Summary

The case involved a dispute between Monkton and Stephenson, where Monkton was the plaintiff and Stephenson the defendant. The dispute arose from a motor vehicle accident caused by livestock negligently kept by Stephenson. A default judgment for liquidated damages was obtained by Monkton when Stephenson failed to attend the Local Court. Stephenson subsequently filed a notice of motion to set aside the judgment. The court was required to decide whether the Local Court Judgment should be set aside due to irregularity in obtaining the default judgment, whether there was an arguable case on liability, and if damages should be particularised in unambiguous terms.

The court found that the Local Court Judgment should be set aside because it was obtained irregularly. The plaintiff had failed to provide the defendant with legal advice prior to the judgment, as required by section 56 of the Uniform Civil Procedure Act. Additionally, there was no arguable case on liability as the damages claimed were unliquidated. The court held that the damages should be particularised in unambiguous terms and that the Local Court should re-determine the damages. The court also noted that the default judgment of liquidated damages was irregular as the claim was for unliquidated damages.

The court ordered that the Local Court Judgment be set aside ex debito justitiae. It was further ordered that the case be remitted to the Local Court for re-determination of damages, and that the damages be particularised in unambiguous terms. The court did not make any orders regarding costs at this stage. The decision highlights the importance of following procedural requirements in obtaining default judgments and the need for particularisation of damages in legal proceedings.

Orders