Morris v Whitehorse City Council - [2023] VSC 336

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S ECI 2023 00450

BETWEEN:

MARK MICHAEL JAMES MORRIS	Plaintiff
v
MUNICIPAL BUILDING SURVEYOR FOR THE CITY OF WHITEHORSE & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF JUDGMENT:	19 June 2023
CASE MAY BE CITED AS:	Morris v Whitehorse City Council
MEDIUM NEUTRAL CITATION:	[2023] VSC 336

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JUDGMENTS AND ORDERS — Claims of negligence, unconscionable conduct, misfeasance in public office, and deprivation of natural justice — Failure to file a defence within time specified by the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) — Default judgment regularly obtained — Defendants’ application to set aside default judgment pursuant to r 21.07 of the Rules — Relevant principles — Kostokanellis v Allen [1974] VR 596 and JRC Enterprises Pty Ltd v Zoomlion Australia-New Zealand Pty Ltd [2013] VSC 646 referred to — Default judgment set aside — Claim brought against incorrect defendant —Comments upon adequacy of the statement of claim — Leave to file an amended statement of claim granted.

APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendants	Ms A J Golding	Minter Ellison

HER HONOUR:

These reasons concern an application by the defendants in this proceeding to set aside an interlocutory default judgment obtained by the plaintiff on 28 March 2023 against the defendants for damages to be assessed (‘default judgment’).

The plaintiff is a resident of Surrey Hills, which falls within the municipal boundaries of the City of Whitehorse. The first defendant is a statutory officer responsible for, among other things, enforcing provisions of the Building Act 1993 (Vic) (‘Building Act’) in the municipality. The second defendant is the Whitehorse City Council (‘Council’), which is, among other things, the local planning authority, and the employer of the person who occupies the office of the first defendant from time to time.[1]
[1]The defendants complain that the Municipal Building Surveyor is not a person or a legal entity. I agree, but that defect in the way in which the proceeding is constituted can be easily remedied.

The judgment was obtained in default of a defence being filed. The judgment was obtained regularly, and was interlocutory in nature, as the plaintiff’s claim was for the recovery of damages, not a debt.[2]
[2]See r 21.02 and r 21.03(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The plaintiff, in his statement of claim filed on 2 February 2023, alleged that the defendants provided the plaintiff with negligent advice in response to requests by the plaintiff for advice in relation to an extension of a deck at his property in Surrey Hills (‘deck’). The statement of claim also made claims against the defendants for unconscionable conduct and against the first defendant for misfeasance in public office by depriving the plaintiff of his right to natural justice.[3]
[3]On the same day that this proceeding was issued, the plaintiff…

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.

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Details

Case: [2023] VSC 336
Decision Date: 19 June 2023

CaseChat Overview and Summary

Morris sued the Whitehorse City Council over a dispute concerning alleged negligence, unconscionable conduct, misfeasance in public office, and deprivation of natural justice. The matter was before the Supreme Court of Victoria. The Council did not file a defence within the time specified by the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and a default judgment was obtained against it. The Council then applied to set aside the default judgment under rule 21.07 of the Rules. The court had to consider the principles relevant to setting aside a default judgment, including those discussed in Kostokanellis v Allen and JRC Enterprises Pty Ltd v Zoomlion Australia-New Zealand Pty Ltd. The court also had to consider whether the claim was brought against the correct defendant.

The court found that the application to set aside the default judgment was properly made. The Council demonstrated a sound defence on the merits, and there was a genuine or reasonably arguable defence to the claim. The Council also demonstrated that it had a reasonable excuse for failing to file a defence in time. The court considered that it would be just to set aside the default judgment. The court also noted that the claim was brought against the wrong defendant, as the claim should have been brought against a different council. However, the court was satisfied that it had jurisdiction to hear the case and that the incorrect defendant had been served with the claim. The court granted leave to file an amended statement of claim.

The court set aside the default judgment and ordered that the claim be brought against the correct defendant. The court also made comments on the adequacy of the statement of claim and ordered that the plaintiff file an amended statement of claim within a specified time. The court noted that the plaintiff had already provided some details about the amended statement of claim, which indicated that it was likely to be sufficient. The court warned that if the amended statement of claim was not filed within the specified time, the Council’s application to set aside the default judgment would be dismissed.

Orders