Okere v E'Co Australia Pty Ltd - [2025] WADC 71

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   OKERE -v- E'CO AUSTRALIA PTY LTD [2025] WADC 71
CORAM:   JEYAMOHAN DCJ
HEARD:   2 SEPTEMBER 2025
DELIVERED          :   8 OCTOBER 2025
FILE NO/S:   APP 26 of 2025
BETWEEN:   CHINEDU NNANNA OKERE
Appellant
AND
E'CO AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DARGE
File Number            :   PER/GCLM/3175/2023

Catchwords:

Magistrates Court appeal - Denial of procedural fairness - Application to set aside default judgment on condition of payment into court - Miscarriage of justice - Turns on own facts

Legislation:

District Court Rules 2005 (WA), r 50, r 51
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40

Result:

Appeal allowed
Application remitted to the Magistrates Court to be tried before a different magistrate

Representation:

Counsel:

Appellant	:	Mr D Siaw
Respondent	:	Mr P Lafferty

Solicitors:

Appellant	:	Hoe Lawyers
Respondent	:	Simon Keay

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

ACN 076 676 438 Pty Ltd (in liq) v A‑Comms Teledata Pty Ltd [2000] WASC 214
Allegro Pty Ltd v Famicorp Pty Ltd (Unreported, WASC, Library No 930313, 14 May 1993)
Batiste v Gilmour-Latham [2001] NSWCA 392
Brocklehurst v Wolinski [2015] WADC 36
Carrier Air Conditioning Pty Ltd v Richard Kevin Thommesen and Rachael Anne Thommesen as Trustees for the Thommesen Family Trust [2005] WADC 195
Defendi v Szigligeti [2019] WASCA 115
Fleming v Duneda Pty Ltd [2000] WADC 17
Frigger v Frigger [2023] WASCA 103
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hall v Hall [2007] WASC 198
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Johnston v Morien [2006] WADC 46
La Trobe Financial Asset Management Ltd v Wallabie Constructions Pty Ltd [2024] WASC 482
McDiarmid v Rycar Pty Ltd [2006] WADC 39
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
National Australia Bank Ltd v Watkins [2024] WASC 30
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Parker v Transfield Pty Ltd [2000] WASCA 382
Sethi v Bhavsar [2020] WASCA 52
Stanley v Layne Christensen Company [2006] WASCA 56
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
West v Wood [2002] WADC 245
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

JEYAMOHAN DCJ:

Introduction

On 13 March 2023, E'Co Australia Pty Ltd (E'Co) commenced proceedings against Chinedu Nnanna Okere (Mr Okere) in the Magistrates Court claiming damages of $45,416.41 in respect of wrongful conversion of certain goods the property of E'Co.[1]
[1] Magistrates Court lower court file General Procedure Claim 3175/2023 (MB), page 1.
On 2 May 2023, E'Co applied for default judgment on the basis that Mr Okere had not lodged, within the prescribed time, a response to claim.
On 19 July 2023, the E'Co obtained default judgment against the Mr Okere for the sum of $47,633.91, made up of claimed amount of $46,389.91 and costs of $1,244.00.
On 24 March 2025, Mr Okere filed an application to set aside the default judgment (Application).[2]
[2] MB, page 116.
On 16 May 2025, the learned magistrate made orders setting aside the default judgment on condition that within 14 days Mr Okere pay the sum of $46,389.91 into court; and lodge a Form 15 - Response to General Procedure Claim; and that Mr Okere pay E'Co's costs thrown away as a result of the Application (Decision).
By notice of appeal filed 30 May 2025, Mr Okere appeals against the Decision.
By notice of respondent's intention filed 26 June 2025, E'Co indicated its intention to take part in the appeal and will argue that the primary court's Decision should be upheld on the grounds relied on by the primary court in its decision. No cross‑appeal was filed.
The appeal proceeded to substantive hearing before this court on 2 September 2025.
For the reasons which follow, I am satisfied that the principal ground of appeal is made out, the appeal should be allowed, the Decision the learned magistrate made on 16 May 2025 and the order for default judgment made on 21 July 2025 be set aside, and the proceedings remitted to the Magistrates Court before a different magistrate for further directions and hearing.

Proceedings in the Magistrates Court

By General Procedure Claim 3175/2023 filed 13 March 2023[3] in the Magistrates Court, E'Co claims as follows against Mr Okere:
In or about September 2021 the Defendant wrongfully converted certain goods the property of the Plaintiff to his own use. The Plaintiff is claiming damages of $45,416.41 being the value of the said goods as at September 2021.
[3] MB, page 1.
On 5 April 2023, the General Procedure Claim form was reissued by the Magistrates Court.[4]
[4] MB, page 10.
On 2 May 2023, E'Co applied for default judgment on the basis that Mr Okere had not lodged, within the prescribed time, a response to claim.
On 19 July 2023, E'Co obtained default judgment against the Mr Okere for the sum of $47,633.91, made up of the claimed amount of $46,389.91 and costs of $1,244.00.
On 24 March 2025, Mr Okere filed the Application to set aside the said default judgment[5] together with a supporting affidavit of Chinedu Nnanna Okere sworn on 22 March 2025 (First Okere Affidavit).[6]
[5] MB, page 116.
[6] MB, page 148.

The matters Mr Okere deposed to in the First Okere Affidavit, can be summarised as follows:
1.He is a director of Shaonnana & Sons Enterprises Pty Ltd (Shaonnana).[7]
2.E'Co and Shaonnana are duly incorporated companies in the State of Western Australia.[8]
3.Mr Mark Keay (Mr Keay) is the Director of E'Co.[9]
4.The business transaction the subject of the claim was between E'Co and Shaonnana and not between E'Co and Mr Okere himself. Mr Keay elected to commence the claim against Mr Okere despite this.[10]
5.Mr Okere delayed by more than one-year in applying to set aside default judgment due to being busy with personal problems.[11]
6.Mr Okere had serious health issues at the time and was going through a lot. Mr Okere says that he was under intense pressure and a bit overwhelmed, and in hindsight, should have done so.[12]
7.Mr Okere's grounds for setting aside the Default Judgment are as follows:
(a)that setting aside the Default Judgment would not prejudice E'Co because the default judgment was obtained against the wrong party; and
(b)the Default Judgment was obtained by fraud (deceit), given that the claim was deliberately filed against Mr Okere and not Shaonnana.[13]
[7] First Okere Affidavit, par 1.1; MB, page 148.
[8] First Okere Affidavit, par 3; MB, page 149.
[9] First Okere Affidavit, par 3; MB, page 149.
[10] First Okere Affidavit, pars 6 - 7; MB, page 150.
[11] First Okere Affidavit, par 10; MB, page 150.
[12] First Okere Affidavit, par 11; MB, page 150.
[13] First Okere Affidavit, par 13; MB, page 151.
On 24 April 2025, E'Co filed its response to the Application[14] together with the affidavit of Mark Brian Keay sworn on 24 April 2025 (Keay Affidavit).[15]
[14] MB, pages 174 - 175.
[15] MB, pages 176 - 180.
The matters deposed to by Mr Keay, in his capacity as the sole director of E'Co, can be summarised as follows:
1.E'Co opposes the orders sought by Mr Okere in the Application.[16]
[16] Keay Affidavit, par 4; MB, page 176.
2.Mr Keay's first met Mr Okere in or around May or June 2021 when E'Co was in the process of relocating its premises to Wangara.[17]
[17] Keay Affidavit, par 5; MB, page 176.
3.E'Co carries on the business of collecting and selling second‑hand goods for export overseas.[18]
[18] Keay Affidavit, par 6; MB, page 176.
4.E'Co has been exporting second‑hand goods from Western Australia to Africa for many years.[19]
[19] Keay Affidavit, par 7; MB, page 176.
5.Mr Okere informed Mr Keay at their first meeting that he wanted to purchase certain second‑hand goods from E'Co for export to Africa.[20]
[20] Keay Affidavit, par 9; MB, page 176.
6.In or around July 2021, E'Co supplied certain second‑hand goods to Mr Okere for and at his request and those goods were successfully exported to Africa (July Transaction).[21]
[21] Keay Affidavit, par 10; MB, page 177.
7.The July Transaction with Mr Okere was conducted on a strict cash basis which is E'Co's standard practice with any party in Australia wishing to export good overseas.[22]
[22] Keay Affidavit, par 11; MB, page 177.
8.At about the same time as the July Transaction, Mr Okere enquired as to whether E'Co was interested in selling and supplying full containers of second‑hand goods for export to his sorting and grading facility in Lome, Togo in West Africa.[23]
[23] Keay Affidavit, par 12; MB, page 177.
9.Mr Keay informed Mr Okere that E'Co was happy to provide full containers of second‑hand goods on the same basis as the July Transaction, namely cash payments in advance of supply.[24]
[24] Keay Affidavit, par 13; MB, page 177.
10.On 8 September 2021, Mr Okere orally placed an order with Mr Keay for one container of used clothing and one container of used shoes.[25]
[25] Keay Affidavit, par 14; MB, page 177.
11.It was orally agreed between Mr Keay and Mr Okere that E'Co would charge the rates per kilogram for the goods supplied as particularised in the invoices annexed to the First Okere Affidavit and marked 'CNO-02'.[26]
[26] Keay Affidavit, par 15; MB, page 177.
12.The rates were discounted on the basis that it was agreed between Mr Okere and Mr Keay that once the goods were sold in Africa, he would account to E'Co for any profit earned by Mr Okere over and above the discounted rate and E'Co and Mr Okere would share those profits equally.[27]
[27] Keay Affidavit, par 16; MB, page 177.
13.It was further agreed that Mr Okere would deliver the required containers to E'Co's premises and that E'Co would fill the containers supplied by Mr Okere with the ordered goods.[28]
[28] Keay Affidavit, par 17; MB, page 177.
14.It was further agreed Mr Okere would collect the containers once filled from E'Co's premises and after payment in cash in advance for the goods at the discounted rate Mr Okere would be entitled to uplift the filled containers for export to Africa.[29]
[29] Keay Affidavit, par 18; MB, page 177.
15.In or around early September, Mr Okere arranged for only one container to be delivered to E'Co's premises and E'Co set about filling the container with the second-hand goods.[30]
[30] Keay Affidavit, par 19; MB, page 178.
16.E'Co was required to deliver the goods and the subject matter of Invoice CHI-001 to Mr Okere's premises in Cannington.[31]
[31] Keay Affidavit, par 20; MB, page 178.
17.On 29 September 2021, Mr Keay informed Mr Okere the container would be ready to be uplifted from E'Co's premises after 12.30 pm and sometime before midday that day, the container was removed from E'Co's premises, purportedly by Mr Okere without reference to Mr Keay.[32]
[32] Keay Affidavit, pars 20 - 21; MB, page 178.
18.The container was not completely full at the time it was removed and the container was not closed or sealed as required for export purposes.[33]
19.Mr Keay presumes that Mr Okere caused the second container to be loaded at his premises. Mr Keay was himself unaware whether the container was either closed or sealed in accordance with proper export practice.[34]
20.Mr Okere did not pay for any of the goods in advance as orally agreed or at all.[35]
21.On 30 September 2021, Mr Keay raised two invoices annexed and marked 'CNO-02' to the First Okere Affidavit.[36]
22.Mr Keay addressed the invoices to Shaonnana as that was the name Mr Okere gave him when he carried out the July Transaction with Mr Okere.[37]
23.Mr Okere informed Mr Keay that the name Shaonnana was the business name he used and was an acronym for certain members of his family.[38] Mr Keay was never informed at any stage that Mr Okere was acting on behalf of a proprietary limited company.[39]
24.Between December 2021 and December 2022 Mr Keay was in constant contact with Mr Okere via WhatsApp.[40]
25.In March 2022, Mr Okere informed Mr Keay that he had offloaded the containers in Africa and in April 2022 he informed Mr Keay that he had sold the goods and would forward payment to Mr Keay.[41]
26.Despite making numerous promises of payment via WhatsApp between April 2022 and December 2022 no payment has been forthcoming.[42]
27.At no time during the WhatsApp exchanges did Mr Okere assert he was not personally liable for payment of the goods or that he had been acting on behalf of any entity described as Shaonnana & Sons Pty Ltd.[43]
[33] Keay Affidavit, par 23; MB, page 178.
[34] Keay Affidavit, pars 24 - 25; MB, page 178.
[35] Keay Affidavit, par 26; MB, page 178.
[36] Keay Affidavit, par 29; MB, page 178.
[37] Keay Affidavit, par 30; MB, page 178.
[38] Keay Affidavit, par 31; MB, page 178.
[39] Keay Affidavit, par 32; MB, page 178.
[40] Keay Affidavit, par 36; MB, page 179.
[41] Keay Affidavit, par 37; MB, page 179.
[42] Keay Affidavit, par 38; MB, page 179.
[43] Keay Affidavit, par 41; MB, page 180; Annexure 'MBK-1'; MB, pages 181 - 232.
E'Co in its submissions filed[44] opposed the Application on the grounds of delay and relied on the matters set out in Keay's Affidavit. E'Co further raised in its submissions, that should Mr Okere be granted leave to defend, that he should be required to pay the whole of the judgment sum into court pending the resolution of the proceedings.
[44] MB, pages 95 - 99.
On 14 May 2025, Mr Okere filed a further affidavit of Chinedu Nnanna Okere sworn on 14 May 20256 in support of the Application (Second Okere Affidavit).[45]
[45] MB, pages 237 - 242.
Mr Okere in the Second Okere Affidavit deposed that:
1.Mr Keay approached Mr Okere's company, Shaonnana for a joint venture with E'Co.[46]
2.Mr Okere never entered into any contract or business arrangement with E'Co or Mr Keay. All discussions and actions were undertaken on behalf of Shaonnana.[47]
3.Mr Okere never misrepresented Shaonnana's corporate identity or blurred his role as a director of Shaonnana.[48]
4.On 2 September 2021, Shaonnana bought some used toys from E'Co at 58 Buckingham Drive, Wangara, Western Australia. Mr Keay gave Mr Okere his personal Commonwealth Bank account to make payments. Mr Okere used Shaonnana's company account to effect payment for the toys. This payment reflected Shaonnana's corporate name on Mr Keay's personal bank account statement.[49]
5.This transaction occurred before the shipment of second‑hand goods and the latter issuance of the invoice. A copy of Business Extra Statement Number 61 is attached and marked Annexure 'CNO-04'.[50]
6.Shaonnana uses its company bank account and corporate name in all transactions and Mr Keay was informed of Shaonnana's legal status. The name Shaonnana & Sons appeared on Mr Keay's personal bank account statement on 2 September 2021, with the payment of $2,117.00.[51] This payment was the subject of an inquiry from the accountant who audits Shaonnana's affairs as to the reason for the payment.[52]
7.The shipment of the second‑hand goods to Africa, before the issuance of the said invoices, the Non‑Negotiable Waybill, Bill of Lading and Telex were in the name of 'Shaonnana & Sons Enterprises Pty Ltd' and copies were also given to Mr Keay.[53]
8.Mr Okere did not cause the container to be removed from E'Co's business premises as alleged. Rather, on 29 September 2021, Mr Keay informed Mr Okere that the container was ready to be picked up. This led Mr Okere to notify the transport company, to pick up the container and transport it to the port.[54]
9.The transaction was between E'Co and Shaonnana and not between E'Co and Mr Okere as established by the invoice issued by Mr Keay to Shaonnana.[55]
[46] Second Okere Affidavit, par 7; MB, page 238.
[47] Second Okere Affidavit, par 8; MB, page 238.
[48] Second Okere Affidavit, par 11; MB, page 238.
[49] Second Okere Affidavit, pars 15 - 16; MB, page 238.
[50] Second Okere Affidavit, par 17; MB, page 238; Annexure 'CNO-04'; MB, pages 243 - 248.
[51] Second Okere Affidavit, par 18; MB, page 238; Annexure 'CNO-04'; MB, pages 243 - 248.
[52] Second Okere Affidavit, par 19; MB, page 238; Annexure 'CNO-05'; MB, pages 249 - 242.
[53] Second Okere Affidavit, par 20; MB, page 238; Annexure 'CNO-06'; MB, page 253.
[54] Second Okere Affidavit, par 21; MB, page 239.
[55] Second Okere Affidavit, par 22; MB, page 239; Annexure 'CNO-07'; MB, pages 254 - 255.
Mr Okere in his submissions in support of the Application, amongst other things, took issue with the judgment having been regularly entered in circumstances where on Mr Okere's submission, the proper party had not been named in the proceedings.[56]
[56] MB, pages 107 - 112.

The learned magistrate's reasons to set aside default judgment

On 16 May 2025, the Application proceeded to substantive hearing before the learned magistrate. Mr Okere was self‑represented at the hearing. E'Co was represented by counsel.
The learned magistrate observed that the Application had been brought 'at a very late stage'.[57] The learned magistrate, having considered the lateness of the bringing of the Application, was ultimately minded to set aside default judgment.[58]
[57] Transcript of Magistrates Court proceedings held on 16 May 2025 (16 May 2025 ts), page 10; MB, page 288.
[58] 16 May 2025 ts 10 - ts 11; MB, pages 288 - 289.
In forming this view, the learned magistrate noted:[59]
HIS HONOUR: The challenge I have is, as you well know, the bar set for setting aside default judgements - - -
…
HIS HONOUR: - - - is whether there is an arguable defence.
[59] 16 May 2025 ts 5; MB, page 283.
In reaching his Decision, the learned magistrate determined that:[60]
1.Whilst Mr Okere had explained he had delayed bringing the Application due to his health issues in the intervening period, this did not explain why Mr Okere had not defended the proceedings brought against him by E'Co in the first instance or applied to set aside the default judgment when it was entered.
2.Whilst Mr Okere had raised an argument in respect of the incorrect party being named to the proceedings, this argument 'barely meets the test' but does meet the test of there being some arguable defence to the claim. That is, the defence that there was an unidentified agency arrangement in place, that there was a company that was the contracting party (and not Mr Okere).
3.That these were all matters that would be the subject of oral evidence in circumstances where the documentary evidence trial 'is very thin'.
4.That in the circumstances, the default judgment entered against Mr Okere personally on 19 July 2023 on condition that within 14 days Mr Okere pay the sum of $46,389.91 into court.
5.That this payment be a security.
6.That Mr Okere is to lodge a form 15 response to claim.
[60] 16 May 2025 ts 10 - ts 11; MB, pages 288 - 289.
In concluding his determination, the learned magistrate made it clear to Mr Okere that if he fails to make the payment, or file a response to claim, within 14 days 'then the default judgment just stays'.[61]
[61] 16 May 2025 ts 10 - ts 11; MB, pages 288 - 289.
The learned magistrate proceeded to make the following orders:[62]
1.The Default Judgment entered on 19 July 2023 is set aside on condition that within 14 days the Judgment Debtor is to:
(a)pay the sum of $46,389.91 into Court; and
(b)lodge a Form 15 - Response to General Procedure Claim.
2.The Defendant is to pay the costs thrown away as a result of this Application to be assessed if not agreed.
[62] MB, page 19.

As Mr Okere did not make did not make payment of the sum of $46,389.91 into court within the 14 days specified, on 21 July 2025, the Magistrates Court on its own motion, made orders that the default judgment entered on 19 July 2023 stands and is enforceable.

The appeal to this court

The appeal is brought pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA).[63]
[63] Notice of appeal filed 30 April 2025.
An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo. Given the appeal is by way of a rehearing it is necessary for the appellant to demonstrate error in the court below. This error must be a legal, factual or discretionary error.[64]
[64] Brocklehurst v Wolinski [2015] WADC 36 [13] ‑ [15]; Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37.
The appeal proceeded to hearing on 2 September 2025. Both parties were represented by counsel at the hearing of the appeal.

Grounds of appeal

The notice of appeal contains the following six grounds of appeal:
1.The Magistrate erred in setting aside the Default Judgment entered on 19 July 2023, on condition that the Judgment Debtor [Mr Okere] pay $46,389.91 into the court account within 14 days.
2.The Magistrate erred in law because the usual order for a default judgment entered irregularly (performed without legal authority) is to set it aside without a security of cost order.
3.The Magistrate did not consider that the Defendant [Mr Okere], notwithstanding being the director of Shaonnana & Sons Enterprises Pty Ltd, was the wrong party to be sued.
4.The Magistrate made a mistake in overlooking that the default judgment was irregularly entered, relying on the falsely alleged claim by the Claimant [E'Co] that it was regularly entered.
5.There was procedural unfairness and a miscarriage of justice, as the evidence did not support the Magistrate's decision.
6.The Magistrate erred in exercising discretion in awarding costs against the defendant, who was the wrong party.

The grounds of appeal were further augmented in in the submissions filed on behalf of Mr Okere dated 25 August 2025 which characterised the grounds of appeal as follows:
1.Whether it is proper or justifiable to make a conditional order for payment of $46,389.91 into court (Ground 1)?
2.Was the conditional order for payment of $46,389.91 a security for costs made against the appellant (Ground 2)?
3.Was the wrong party being sued (Ground 3)?
4.Was the default judgment regularly entered (Grounds 4 and 5)?
5.Was the learned magistrate wrong in awarding costs 'thrown away' against the appellant (Ground 6)?

Issues for determination

Both parties relied on oral and written submissions in respect of the appeal. Mr Okere's grounds of appeal are at times difficult to follow and confuses a condition of payment into court with a security for costs orders. However, Mr Okere's grounds of appeal can be understood including by having had regard to the parties' respective written and oral submissions made by counsel at the hearing of the appeal.
The following four issues arise for determination:
1.Did the learned magistrate err in imposing a condition of payment into court in setting aside default judgment? (Grounds 1 and 2)
2.Did the learned magistrate err in imposing a condition of payment and a costs order against Mr Okere personally? (Grounds 3 and 6).
3.Was the default judgment regularly entered? (Ground 4)
4.Was the appellant denied procedural fairness in relation to the Decision? (Ground 5)

Did the learned magistrate err in imposing a condition of payment into court in setting aside default judgment? (Grounds 1 and 2)

Mr Okere does not take issue with the setting aside of the default judgment, but the learned magistrate's decision to impose a condition of payment into court by Mr Okere for the full amount of E'Co's claim (ie $46,389.91) within 14 days of the Decision.
Mr Okere's position can be summarised as follows:
1.The making of a conditional payment order by the learned magistrate in setting aside default judgment is not proper or justifiable as it is too excessive and onerous and amounts to a penalty in circumstances where the amount is for the entirety of E'Co's claim.
2.The learned magistrate had 'prejudged the case' in favour of E'Co in circumstances where there was very limited evidence as to the nature of the claim and the basis on which E'Co had quantified the claim.
E'Co's position can be summarised as follows: That the making of a conditional payment order by the learned magistrate does not constitute a proper ground of appeal in that it does not identify an error, and is not a penalty, in circumstances where it was open to the learned magistrate to do so in the exercise of his discretion.
On my review of the lower court file, Mr Okere brought the Application some 22 months after default judgment had been obtained by E'Co. Mr Okere in the First Okere Affidavit deposes that he delayed by more than one‑year in applying to set aside default judgment due to being busy with personal problems.[65] Mr Okere deposes that he had serious health issues at the time and was under intense pressure, a bit overwhelmed, and in hindsight, should have done so.[66] There is no suggestion that Mr Okere was unaware that E'Co had obtained default judgment against Mr Okere. The learned magistrate, having considered the lateness of the bringing of the Application, was ultimately minded to set aside default judgment.[67]
[65] First Okere Affidavit, par 10; MB, page 150.
[66] First Okere Affidavit, par 11; MB, page 150.
[67] 16 May 2025 ts 10 - ts 11; MB, pages 288 - 289.
The court has an unfettered discretion to set aside default judgment. However, the appellant must show a credible argument that, if default judgment is set aside, it would have a real prospect of success. The purpose of the discretionary power is to avoid the injustice which would follow automatically on default.[68]
[68] Parker v Transfield Pty Ltd [2000] WASCA 382 [3] - [4] and Hall v Hall [2007] WASC 198 [61] - [67].
MCCPA s 19 provides:
19.Default by party, Court's powers to deal with
(1)This section does not apply to a failure to comply with the judgment of the Court in a case or any order made in or as a consequence of the judgment.
(2)If a party does not comply with this Act, rules of court, or an order or direction made by the Court, the Court may ‑
(a)order the party to pay the costs occasioned by the non‑compliance irrespective of whether the party ultimately succeeds in the case; or
(b)give judgment against the party without a trial.
(3)The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
In this matter, the relevant term was the learned magistrate's decision to impose a condition of payment into court by Mr Okere in setting aside default judgment. The learned magistrate determined:[69]
HIS HONOUR: You've raised an argument which, to my mind, barely meets the test, but does meet the test of there being some arguable defence, which is that there was an unidentified agency arrangement in place, that there was a company that was, essentially, the contracting party. Now, that really is going to depend on what oral evidence is given, because it seems to me the documentary evidence trail is very thin.
… But, in any event, I'm going to set aside the judgment that was entered against you personally on 19 July 2023. But that is on condition. And the conditions are that within 14 days you are to pay the sum of 46,389.91 into court. So, you pay it into court as a security for you saying that there is a good defence in this matter, and you ought to be able to defend it. Secondly, you're to lodge the form 15 response to claim, which is the document should have lodged. So, if either of those things do not happen within 14 days, then the default judgment just stays. But you now have the opportunity to put money where your mouth is and pay that money into court.
OKERE, MR: Your Honour - - -
HIS HONOUR: Secondly, you would pay the costs thrown away as a result of this application. Okay.
[69] 16 May 2025 ts 11; MB, page 289.
If the defence put forward in the affidavit of merits is 'shadowy' it may be appropriate to order that money be paid into court as a condition of default judgment being set aside.[70] However, in the present matter, in imposing a condition of payment into court, Mr Okere was not given the opportunity, including during the hearing of the Application, to give evidence as to his financial capacity to pay the $46,389.91 into court, being the entirety of the amount claimed by E'Co, into court within 14 days.
[70] West v Wood [2002] WADC 245 [7] - [9]; (2002) 30 SR (WA) 57; Carrier Air Conditioning Pty Ltd v Richard Kevin Thommesen and Rachael Anne Thommesen as Trustees for the Thommesen Family Trust [2005] WADC 195 [11]; Fleming v Duneda Pty Ltd [2000] WADC 17; [21] - [25]; Allegro Pty Ltd v Famicorp Pty Ltd (Unreported, WASC, Library No 930313, 14 May 1993).
E'Co relies on the principles enunciated in McDiarmid vRycar Pty Ltd[71] in support of its position that the payment condition is commonly imposed in debt recovery proceedings where the court has reservations about the merits of the defence. The conditions imposed on the grant of leave to the defendant in Rycar to defend the action was done having had express regard to the rules in respect of summary judgment.[72]
[71] McDiarmid v Rycar Pty Ltd [2006] WADC 39 (Rycar).
[72] Rules of the Supreme Court 1971 (WA) O 14, r 4(3).
The court has the power to set aside default judgment on conditions which could include security to be given or payment into court of the judgment sum and also strict time limits with which the defendants would need to comply for the filing of a defence and counterclaim.[73] In Hazart,[74] Anderson J with whom Malcolm CJ and Scott J agreed, stated the following about the grant of conditional leave to defend:
In my experience of the practice in this Court, when the Court concludes that the bona fides of a defence and/or counterclaim are in doubt, the Court will usually require that the defendant provide some security. This is to ensure that a defence that appears to be very weak on its merits is at least being put forward in good faith. Unless the court was prepared to take this step in appropriate cases, injustice often would be done to plaintiffs pursuing good causes of action against debtors claim for time. When the plaintiff's claim appears clear cut, as, for example, in the case of the sale and delivery of goods for an agreed price, and the Court is left in real doubt about the defendant's good faith (although not able to say for certain there is no triable issue) it is not unusual for the Court to order, as a condition of leave to defend, that the full amount of the claim be secured. This will usually be by payment into court. If to do so would impose hardship on the defendant, the court may order that less than the full amount be paid in.
[73] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 31 - 32 (Hazart) and Batiste v Gilmour-Latham [2001] NSWCA 392 [16].
[74] Hazart (31) - (32).
Anderson J, in Hazart, went on to say that the court should not order payment into court of the amount of the claim where the defendant was able to show that 'compliance with such condition would be so onerous as to practically deny the defendant a real opportunity to present his defence'.[75]
[75] Hazart (32).
It is usual therefore for the defendant to be given an opportunity to produce evidence as to its financial position to assist the court within the exercise of its discretion. On my review of the transcript and the materials before the lower court, there was nothing before the court as to Mr Okere's ability to satisfy the conditional payment. To the contrary, Mr Okere's evidence from the bar table was that he lacked the financial capacity to pay the money into court:[76]
OKERE, MR: Your Honour, with due respect, I don't have that money. I've been going through - it's a small business. And, Marc, I took to Africa to cover my business in Africa. That is why I'm saying he is suing the wrong person.
…
HIS HONOUR: Okay. Again, Mr Okere, you were within bringing this application at the very limits of being permitted to bring it, in the first place, because of the delays that have occurred. Everything there is well outside what the court would consider is acceptable. But I'm going to give you a lifeline. And that lifeline is that you are able to set aside this judgment so that the company, if needs be, can be joined to the proceedings at some stage. More information can be provided. But that comes at a cost. And that cost is that the money has to be paid into court.
[76] 16 May 2025 ts 11 - ts 12; MB, pages 289 - 290.

And:[77]
OKERE, MR: Your Honour, I don't have that money. The thing is, we have to - - -
HIS HONOUR: Well, ultimately, that's the order of the court, Mr Okere.
OKERE, MR: Your Honour - - -
HIS HONOUR: You can comply with it or not comply with it. It's up to you. Okay. Thank you.
[77] 16 May 2025 ts 12; MB, page 290.
The learned magistrate, having exercised his discretion to set aside default judgment, went onto impose a condition of payment into court of the entirety of the claimed amount within a truncated time frame (ie 14 days from the date of the Decision) making it impossible for Mr Okere to defend the action.
As Sleight CJDC observed in Johnston v Morien:[78]
It is a wrongful exercise of discretion to impose a condition which the defendant would never be able to meet, but it is for the defendant to put sufficient proper evidence of his or her impecuniosity before the court and to make a full and frank disclosure. A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the court by reason of the evidence placed before it. (See M V York Motors (a firm) v Edwards [1982] 1 All ER 1024 at 1027). There may be circumstances where it is appropriate to order the defendant to pay into court the full amount of the plaintiff's claim (see Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28).
[78] Johnston v Morien [2006] WADC 46 [26].
As Mr Okere was not given the opportunity to give evidence as to his financial capacity to meet the payment within the prescribed time period, in reaching his determination, could not be satisfied that Mr Okere was in a position to meet the condition. No consideration was given as to whether it would have been appropriate to order that only part of the amount claimed be paid into court or something else in the manner contemplated by Hazart.
I would therefore allow the appeal on grounds 1 and 2.

Did the learned magistrate err in imposing a condition of payment and a costs order against Mr Okere personally? (Grounds 3 and 6)

Mr Okere in grounds 3 and 6 submits that it was improper and/or premature for the learned magistrate to make an order imposing a condition of payment into court and a costs order against Mr Okere personally in circumstances where E'Co ought to have properly sued Shaonnanna instead. Mr Okere's submissions in respect of grounds 3 and 6 intersects with some of the matters raised by Mr Okere in respect of grounds 1 and 2.
In respect of the condition of payment being imposed on Mr Okere personally, Mr Okere relies on the matters deposed to in the First and Second Okere Affidavits in support of his submission that E'Co elected to commence proceedings against the 'wrong defendant' in circumstances where at all relevant times, E'Co had been carrying out business with Shaonnanna. Related to this, in respect of Mr Okere being ordered to meet E'Co's costs thrown away, Mr Okere submits that the appropriate costs order in the circumstances ought to have been costs in the cause, and is broadly tied to the proceedings being brought against Mr Okere and not Shaonnanna.
The respondent submits that the issue to be determined at the hearing on 16 May 2025 was whether Mr Okere had an arguable defence and not the question of whether the correct party had been joined to the proceedings. The respondent submits that in any event, the learned magistrate took into consideration Mr Okere's evidence that he may not be personally liable.

Disposition

During the hearing, the learned magistrate heard submissions from Mr Okere in respect of the party named as the defendant in the proceedings:[79]
[79] 16 May 2025 ts 2 - ts 3; MB, pages 280 - 281.
HIS HONOUR: … So, Mr Okere, you've said that you wish to defend this, ultimately, on the basis that there is a company in place, and that the proceedings ought to have been commenced against a company; is that correct?
…
OKERE, MR: Yes.
HIS HONOUR: Okay. When I've read through your affidavit explaining why you want to defend the proceedings you've said that the proceedings should not have been commenced against you personally.
OKERE, MR: Yes.
HIS HONOUR: That they should have been commenced against your company.
OKERE, MR: Yes.
HIS HONOUR: Is that company still trading?
OKERE, MR: Yes.
HIS HONOUR: Yes. Okay. So you're disputing this judgment and wanting to set it aside, is that because you don't have the money to pay it?
OKERE, MR: No.
HIS HONOUR: No.
OKERE, MR: The thing is E'Co, Marc did a business. Like, the business was with E'Co Australia and Shawa Nnanna, which is my company. I'm the only director, and I'm the representative. So the invoice was issued on Shawa Nnanna, not on my name. Then - - -
HIS HONOUR: We just had the name of that at the top of the invoice. It didn't identify who traded as that business, even if, indeed, it was a business name. It didn't have any more details on there, did it?
OKERE, MR: No. No.
HIS HONOUR: No.
OKERE, MR: It did - it has, because there are a few - if you look at - - -
HIS HONOUR: There is no purchase orders or anything. There's nothing from you to E'Co Australia, is there, saying - or letters from that company, or anything like that? There is only WhatsApp messages.
OKERE, MR: No. No. We - we - we talk. He - he - the thing is, the first transaction, we were going to - to church. Then we saw some - some toys and other things. I - me and my wife, she is here, we went. And the first money I paid to him when I bought stuff, Shawa Nnanna paid from Shawa Nnanna to him. But he told me not to put it in E'Co's account, that I should put it in - in his personal name, which I also stated in the affidavit.
…
The learned magistrate in reaching his Decision thereafter proceeded to make orders in respect of costs.
The starting point with respect to costs is s 25(1) of MCCPA. Section 25 of the MCCPA relevantly provides:
1.The Court may order a party to a case to pay the whole or a part of another party's costs in the case.
2.A successful party is entitled to an order under subsection (1) that the whole of its costs in the case be paid by the unsuccessful party, unless the Court considers there is good reason not to make such an order …
In Stanley v Layne Christensen Company[80] the Court of Appeal said, with respect to cost orders in circumstances where the indulgence of the court is sought, the following:
The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the 'normal rule' relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer.
[80] Stanley v Layne Christensen Company [2006] WASCA 56 [52].

Rules of the Supreme Court O 13, r 14 expressly provides that the court may set aside or vary default judgment 'on whatever terms it thinks just'. That discretion is not qualified.[81] It is to be exercised 'so as to do justice between the parties, having regard to the circumstances of the case'.[82] The usual orders upon the setting aside of a regular judgment is that all the costs of and occasioned by the entry and setting aside of the judgment shall be the plaintiff's in any event.
[81] Starrs v Retravision (WA) Ltd [2012] WASCA 67 [15] (Starrs v Retravision); La Trobe Financial Asset Management Ltd v Wallabie Constructions Pty Ltd [2024] WASC 482 [37].
[82] National Australia Bank Ltd v Watkins[2024] WASC 30 [13].
Mr Okere was not invited to make submissions with respect to the matter of costs and whilst Mr Okere was seeking an indulgence of the court, on my review of the transcript of the hearing of the Application, there is some conflation on the part of the learned magistrate as to the question of who will meet payment of the condition and costs. Relevantly, the learned magistrate observed, having heard Mr Okere's submissions that the proceedings ought to have been commenced against a company and not him personally, that:[83]
HIS HONOUR: But, I don't think there was any problem if that company wanted to pay the bill, I'm sure the claimant would not have any difficulties dismissing - - -
…
OKERE, MR: All I'm asking, if - if - if Marc want to sue, let him sue Shawa Nnanna. I - Shawa Nnanna would defend. Because there are conversations that are not in the office.
[83] 16 May 2025 ts 9 - ts 10; MB, pages 287 - 288.
Inspite of these matters, I am not satisfied that the learned magistrate erred in exercising his discretion to award costs to E'Co. Having regard to the principles enunciated in Stanley and the matters known to the learned magistrate in respect of the question of the party sued, an order that E'Co have the costs of the application was entirely appropriate.
It is for Mr Okere to develop the argument that the wrong party has been sued and raise this as a potential defence. Subject to my views in respect of grounds 1 and 2 above, Mr Okere has not been denied this opportunity by the mere fact that the learned magistrate was not persuaded to accept Mr Okere's assertion that the wrong party had been sued.
These grounds of appeal have not been established.

Was the default judgment regularly entered? (Ground 4)

Mr Okere submits that the default judgment was not regularly entered at the first instance as there was no evidence provided by E'Co to establish that the default judgment was regularly entered. Mr Okere submits that prior to default judgment being granted, the court should have considered the following:
1.Whether E'Co had previously issued any written notices of demand to Mr Okere personally prior to the filing of the claim.
2.Whether there had been proper service of the claim on Mr Okere.
3.Whether E'Co had first given Mr Okere notice prior to applying for default judgment.
4.Whether there had been proper service of the default judgment on Mr Okere.
E'Co submits that Mr Okere has not provided any basis for the assertions made and that the assertions lack merit.

Disposition

E'Co obtained default judgment against the Mr Okere for the sum of $47,633.91 on 19 July 2023 pursuant to s 19(2)(b) in circumstances where Mr Okere had not lodged, within the prescribed time, a response to claim. On 24 March 2025, Mr Okere filed the Application to set aside default judgment.[84]
[84] MB, page 116.
A judgment which has been entered without proper compliance with the court's rules, or entered for more than the amount due, is irregular.[85] On my review of the materials before the lower court, it is not clear what is said to constitute the 'irregularly entered judgment'. The matters Mr Okere simply asserts that:
1.The default judgment was obtained by fraud (deceit), given that the claim was deliberately filed against Mr Okere and not Shaonnana.[86]
2.The proper party had not been named in the proceedings.[87]
[85] ACN 076 676 438 Pty Ltd (in liq)v A‑Comms Teledata Pty Ltd [2000] WASC 214 [17]; Starrs v Retravision [44].
[86] First Okere Affidavit, par 13; MB, page 151.
[87] MB, pages 107 - 112.
I do not consider that this ground has merit. Based on the materials available, this is a 'rolled up' ground of appeal that is vague and does little to establish the assertions made.
In any event, Starrs v Retravision, makes it clear that:
1.Not every irregularity in the means by which a judgment in default is obtained will necessarily entitle the defendant to have the judgment set aside as of right.[88]
2.The court has power to amend an irregularly entered judgment which has been entered for more than the amount due.[89]
3.In an appropriate case (particularly if it would be futile to set aside a judgment rather than vary it by substituting the amount now owing) the court may, in the exercise of its discretion, amend an irregularly entered judgment rather than set it aside.[90]
4.The power can be exercised even where the application for an amendment is made after the defendant has applied to set it aside.[91]
[88] Starrs v Retravision [36].
[89] Starrs v Retravision [46].
[90] Starrs v Retravision [36], [48], [75] and [76].
[91] Starrs v Retravision [47].
This ground of appeal has not been established.

Was the appellant denied procedural fairness in relation to the Decision? (Ground 5)

Mr Okere's submissions in respect of this ground of appeal relate to the learned magistrate not accepting Mr Okere's submission that the default judgment was not regularly entered at the first instance. Mr Okere submits that this amounts to a denial of procedural fairness in relation to the Decision.
E'Co submits that Mr Okere has made no attempt to identify the alleged procedural unfairness or miscarriage of justice of the evidence which did not support the learned magistrate's Decision. E'Co submits that contrary to Mr Okere's assertion, Mr Okere was afforded procedural fairness and there has been no miscarriage of justice.

Disposition

There is no doubt that the learned magistrate was obliged to afford procedural fairness to both Mr Okere and E'Co as parties to the lower court proceedings.
As a litigant in person, Mr Okere was entitled to some leniency in relation to compliance with the court rules.[92] The court was required to approach the documents in which he articulated his case with some flexibility.[93] The court needed to be astute to ensure that, in a poorly expressed or unstructured document in which he set out his case, there was no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[94] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[95]
[92] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[93] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[94] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).
[95] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[96] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[97] A self‑represented litigant is subject to the practice and procedure of the court as much as any other litigant.[98]
[96] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[97] Zerjavicv Chevron AustraliaPty Ltd [2020] WASCA 40 [74] - [75] (Zerjavic).
[98] Zerjavic [75] - [76] (references omitted).
The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern it.[99] The content of procedural fairness also needs to be understood having regard to the nature of the proceedings.[100]
[99] Defendi v Szigligeti [2019] WASCA 115 [48].
[100]Frigger v Frigger [2023] WASCA 103 [42].
It is in this overall context that the question arises as to whether Mr Okere was afforded procedural fairness by the learned magistrate at the hearing of the Application in its entirety, including the question of whether default judgment had been regularly entered.
On my review of the manner in which the hearing proceeded, it is evident that Mr Okere has not been denied procedural fairness by the mere fact that the learned magistrate was not persuaded to accept Mr Okere's assertion that the wrong party had been sued. More generally, having reviewed the transcript of the hearing before the learned magistrate available to me, and reviewing the materials, it is not apparent that Mr Okere was denied natural justice or procedural fairness in respect of the question of whether default judgment had been irregularly entered.
However, as noted earlier, Mr Okere was not given the opportunity to give evidence as to his financial capacity to meet the payment within the prescribed time period. Relevantly, no consideration was given as to whether it would have been appropriate to order that only part of the amount claimed be paid into court or something else in the manner contemplated by Hazart.
As a consequence, I am of the view that Mr Okere was denied procedural fairness in relation to the Decision.
I would therefore allow the appeal on ground 5.

Conclusions and final orders

Having upheld grounds 1, 2 and 5 of this appeal, for completeness, I turn to the question of the effect of this determination on the lower court proceedings.
As noted above, given Mr Okere did not make payment of the sum of $46,389.91 into court within the 14 days specified, on 21 July 2025, the Magistrates Court on its own motion, made orders that the default judgment entered on 19 July 2023 stands and is enforceable. However, in upholding grounds 1, 2 and 5 of this appeal, I am of the view that the learned magistrate erred in imposing a condition of payment into court in setting aside default judgment for the reasons set out in detail above.
In the circumstances of this case, I conclude it would be unjust to allow the condition of payment into court to remain in existence.
I am otherwise of the view that the default judgment should be set aside for the following reasons.
First, by reason of the matters deposed to in the First Okere Affidavit, Mr Okere has provided a satisfactory explanation for the delay in bringing his application to set aside default judgment. There is no evidence to suggest that E'Co would be in any different position had the application to set aside default judgment been filed on time. Further, there is nothing to suggest irreparable prejudice to E'Co as a result of the setting aside of the default judgment.
It is also relevant that Mr Okere has disclosed an arguable defence to E'Co's claim. That is, that the relevant contracting parties to the disputed transaction are E'Co and Shaonnana and not E'Co and Mr Okere. Mr Okere relies on the invoice issued by Mr Keay to Shaonnana in support of this.[101] It is not necessary for me to express any view as to the merits of the claim given the lower court proceedings are at the interlocutory stage. For the purposes of the present application, it is sufficient for me to observe that, if Mr Okere's version of events is accepted, he would have a good defence to E'Co's claim on the merits. To not set aside default judgment would be an injustice which would follow automatically on default.
[101] Second Okere Affidavit, par 22; MB, page 239; Annexure 'CNO-07'; MB, pages 254 - 255.
In exercising its discretion to set aside the default judgment, the court is not required to impose a condition. In any event, there is no evidence before this court as to Mr Okere's financial capacity to satisfy a condition of payment else in the manner contemplated by Hazart such that to impose any condition of payment in the making of these orders would be inconsistent with the established principles.
For the sake of completeness and to limit any confusion, in setting aside the default judgment, the following orders for default judgment are to be set aside: default judgment entered 19 July 2023 and default judgment entered 21 July 2025.
Accordingly, I allow the appeal and I make the following orders:
1.The appeal in this matter be allowed.
2.The Decision of the learned magistrate made on 16 May 2025 be set aside.
3.The order for default judgment made on 19 July 2023 in General Procedure Claim 3175/2023 be set aside.
4.The order for default judgment made on 21 July 2025 in General Procedure Claim 3175/2023 be set aside.
5.The appellant pay the respondent's costs thrown away of the application to set aside the default judgment filed 24 March 2025 in General Procedure Claim 3175/2023.
6.The proceedings be remitted back to the Magistrates Court before a different magistrate for further directions and hearing.
7.There be liberty to apply in relation to these orders.
I will hear further from the parties as to whether an order for costs should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
Associate
6 OCTOBER 2025