SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MULPARA PTY LTD & ANOR v THUNDER ENTERPRISES LIMITED & ORS
[2008] SASC 94
Reasons of Judge Burley a Master of the Supreme Court
21 April 2008
PROCEDURE
Application to set aside interlocutory judgment - failure to file and serve notice of address for service after service of counterclaim - default judgment obtained - whether judgment should be set aside - reason for failure to file notice - delay in applying to set aside judgment - pleading of counterclaim grossly inadequate - counterclaim issued three days after time set for filing of counterclaim - whether default judgment irregularly obtained - late filing did not constitute irregularity - inadequacy of counterclaim constituted irregularity - applicable rules - judgment set aside.
SUPREME COURT RULES 1987 RR 23.04 and 84.12, referred to.
Watson v Anderson (1976) 13 SASR 329; Hill v Parke Davis & Co Limited (1986) 41 SASR 349 at 353; Grimshaw v Dunbar [1953] 1 QB 408; Murray Villa Pty Ltd v Nitschke Earthmovers Pty Ltd (1989) 153 LSJS 45; Battiste v Mulvaney (unreported) Judgment No s 6419, delivered 7 November 1997; S & V Rignanese Nominees Pty Ltd v Rignanese [2006] SASC 138; Fort v Gray (1988)50 SASR 425; Daly v Silley; Kitson v Mason [1926] VLR 419, considered.
MULPARA PTY LTD & ANOR v THUNDER ENTERPRISES LIMITED & ORS
[2008] SASC 94
JUDGE BURLEY: These proceedings originally consisted of a claim by the plaintiffs and a counterclaim by the first defendant against various defendants by counterclaim. The claim by the plaintiffs has been settled, as has the counterclaim against the plaintiffs. What remains of the proceedings is the first defendant’s counterclaim against Mr and Mrs Fleming, who are respectively the third and fourth defendants by counterclaim. I will refer to the parties respectively as the plaintiff and the defendants for ease of reference.
I mention that, at one stage, the plaintiffs may have regarded Mr and Mrs Fleming as having been joined as defendants to the claim. Whether or not they were properly so joined is not material to the present proceedings. However, for the sake of completeness, if the original plaintiffs relied upon the order of Debelle J made on 7 December 2005 as constituting the granting of leave to join Mr and Mrs Fleming as defendants to the claim, such a belief is erroneous as his Honour made no such order on that day.
It is common ground that the 1987 Supreme Court Rules apply to these proceedings.
The defence and counterclaim was filed on 15 December 2005, three days after the time appointed by Debelle J for the filing of same when he made orders on 7 December 2005. The counterclaim was subsequently served on Mr and Mrs Fleming. This is apparent from the affidavit of Mr Peter Ellery, licensed process server, sworn on 10 January 2006 (FDN 35). The defendants do not contest the correctness of Mr Ellery’s affidavit. Mr Ellery said that…
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- [2008] SASC 94
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