P Vivante & Co Pty Ltd v Yap

[2007] WADC 149

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   P VIVANTE & CO PTY LTD -v- YAP [2007] WADC 149

CORAM:   O'BRIEN DCJ

HEARD:   6 JULY 2007

DELIVERED          :   Delivered Extemporaneously on 6 JULY 2007 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 1536 of 1989

BETWEEN:   P VIVANTE & CO PTY LTD

Plaintiff

AND

CHENG SEE YAP
Defendant

Catchwords:

Appeal against Registrar's decision - Application to set aside default judgment - Abuse of process - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr M I Handcock

Defendant:     In Person

Solicitors:

Plaintiff:     Mullins Handcock

Defendant:     Not applicable

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

Yap v P Vivante & Co Pty Ltd, unreported; FCt of SCt of WA; Library No 930339; 10 June 1993

1. O'BRIEN DCJ:  By notice of appeal filed 26 April 2007 the appellant appeals against a decision of the Registrar made on 19 April 2007 dismissing her application to set aside default judgment and ordering her to pay costs.

2. This matter dates back to 1989.  There is at least one lever arch box of documents in relation to the various applications since then which have been filed primarily by the appellant.  The most recent affidavits are in connection with this appeal and they were sworn on 5 April 2007 and 23 April 2007.  The appellant has also filed lengthy submissions dated 29 June 2007.

3. In my view, the application dated 5 April 2007, to set aside the default judgment dated 10 April 1989 is misconceived and an abuse of process.  I have personally reviewed the District Court files in relation to this matter.  As they date back to 1989, some are not in strict chronological order and so this was quite a time‑consuming process.  It is from those files that the following chronology is drawn.  The chronology relates only to those proceedings and applications relevant to the present application.

4. The plaintiff filed a statement of claim on 15 March 1989 and it was served on 20 March 1980.  The plaintiff's claim was in the sum of approximately $39,000, with interest.  It claimed that there was a deed made between the plaintiff and the defendant, who is the appellant, which was stamped on 9 September 1988, wherein the defendant agreed to pay the plaintiff certain sums of money, together with interest, and guaranteed a debt due to the plaintiff by a company of which the defendant was a director and shareholder.

5. I will now refer to the defendant as "the appellant".

6. The appellant did not enter an appearance.  On 10 April 1989 default judgment was entered against the appellant.  On 26 April 1989 a writ of fi fa was lodged.  On 10 April 1992 the appellant filed an application to set aside the default judgment.  The matter was listed for 29 May 1992.  The appellant did not appear and her application to set aside the default judgment was dismissed.  Thereafter, the appellant filed an affidavit explaining her non‑appearance on 29 May 1992.

7. Following that, there were various orders for examination of the appellant as a judgment debtor.  On 29 May 1992 the appellant lodged her second application to set aside the default judgment made on 10 April 1989.  On 23 June 1992 a Registrar of this Court set aside the default judgment entered on 10 April 1989 and made the following orders:

   1.The defendant (appellant) do have leave to defend the action conditional upon the payment of $39,000 into Court within 14 days from the date of the order;

   2.The defendant (appellant) do file and serve a memorandum of appearance within 3 days from the date of this order;

   3.The defendant (appellant) do file and serve a defence within 10 days from the date of the order;

   4.In the event the $39,000 is not paid into Court within the time specified, the plaintiff do have liberty to enter judgment.

8. On 26 June 1992 the appellant filed a memorandum of appearance.  From what I can gather from the Court file, no defence has ever been filed.  The appellant applied to vary the order of the Registrar made on 23 June 1992.  However, it would appear that she decided to proceed by way of appeal against the Registrar's decision rather than pursue her application to vary the Registrar's order made on 23 June 1992.

9. On 7 July 1992 the plaintiff's solicitors requested entry of judgment pursuant to the order of the Registrar made on 23 June 1992, presumably on the basis that the appellant had not complied with the conditions.

10. On 21 August 1992 his Honour Judge Viol dismissed the appellant's application for leave to appeal out of time against the Registrar's order made on 23 June 1992.

11. In his written judgment distributed on 4 September 1992, Viol J outlines the chronology of proceedings and considers numerous affidavits which had been filed in support of the appellant's then application and in relation to various other applications.

12. On 25 August 1992 judgment was entered against the appellant in the sum of $54,990.17.  Costs were taxed and allowed in the sum of $1,342.30 pursuant to the taxing officer's certificate dated 5 August 1992.

13. On 9 August 1993, during what appears to be an examination of the appellant as a judgment debtor, the Deputy Registrar, according to the transcript, told the appellant that he could not consider the merits of the judgment and told her that she would have to apply to set aside the judgment.

14. Although there does not appear to be any formal documentation on the District Court file, it is clear from a decision of the Full Court that the appellant appealed the decision of his Honour Judge Viol made on 21 August 1992.

15. The appeal was heard in the Full Court on 10 June 1993, where it was dismissed: Yap v P Vivante & Co Pty Ltd, unreported; FCt of SCt of WA; Library No 930339; 10 June 1993.

16. After examining the affidavits filed in support of the appeal and considering the merits of the defence, the Full Court ruled that the appellant's defence to the action was "shadowy".

17. Thereafter, there were various proceedings concerning the examination of the appellant as a judgment debtor.

18. On 1 November 1993 the appellant applied for an extension of time to comply with the conditional order made by the Registrar on 23 June 1992.  By then, all the time limits for compliance with the conditional leave to defend had well and truly expired.  This application was dismissed by his Honour Judge Hammond.  I repeat, that judgment had already been entered on 25 August 1992.  The application was, in my view, clearly misconceived.  (I note that in relation to most of these proceedings, unless I specify, there is no transcript on which to rely so I am relying on the Court record).

19. It would appear at some stage that land the subject of the writ of fi fa was sold.  On 13 May 1995 the appellant applied for the balance of the sale proceeds to be returned to her.  That application was dismissed on 29 June 1995.

20. On 17 November 1995 the appellant applied to have the deed the subject of the action set aside.  His Honour Judge Sadleir dismissed that application.  Again it would appear that that application was misconceived and doomed to fail.

21. On 9 November 1998 the appellant filed a Chamber summons to set aside the default judgment made on 10 April 1989.  This was heard on 12 November 1998 and a Registrar dismissed the application.  On 6 November 1998 the appellant filed yet another Chamber summons to set aside the default judgment made on 10 April 1989.  There were various non‑appearances and adjournments and the matter was finally dismissed by his Honour Judge Greaves on 13 February 2002.

22. Undeterred by the previous decisions of the Court in relation to setting aside the default judgment made on 10 April 1989, on 20 November 2002 the appellant again applied to set aside the default judgment made on 10 April 1989.  On 20 January 2004 the Registrar dismissed the application.

23. On 21 January 2004 the appellant filed a notice of appeal against the Registrar's decision made on 20 January 2004 dismissing her application to set aside the default judgment.

24. On 19 February 2004 his Honour Judge Greaves dismissed the appeal.

25. Thereafter the Court file does not reveal any substantive applications made by the appellant.  However, over three years later, on 11 April 2007, the appellant made another application to set aside the default judgment made on 10 April 1989.  On 19 April 2007 the Registrar dismissed the application to set aside the default judgment.

26. Accordingly, by notice of appeal dated 26 April 2007 the appellant appealed the Registrar's decision made on 19 April 2007.  Despite being told by the Deputy Registrar during the course of her examination as a judgment debtor on 9 August 1993 that if she in effect had concerns about the merits of the judgment she would have to apply to have it set aside, it was not until 9 November 1998, over five years later, that the appellant made an application to have the default judgment set aside and that application was dismissed, as I have outlined.

27. Even then, the appellant did not appeal the judgment entered on 25 August 1992.  Since then the appellant has made three further applications to have the default judgments set aside and all of them have been dismissed.  She has appealed one of those decisions, namely, that made by the Registrar on 20 January 2004, and that appeal was dismissed by his Honour Judge Greaves on 19 February 2004, as I have already outlined.

28. A further three years elapsed before the appellant's present application to set aside the default judgment, which the Registrar dismissed on 19 April 2007.

29. In my view, all of the appellant's applications to set aside the default judgment made on 10 April 1989, apart from those made on 10 April 1992 and 29 May 1992, were misconceived.  This is because on 23 June 1992 the Registrar set aside the default judgment, giving the appellant leave to defend on certain conditions.  Judgment was entered on 25 August 1992 as those conditions had not been complied with.  There has never been any appeal against that judgment.

30. Accordingly,  in my view there is no merit in the application to set aside the default judgment made on 10 April 1989 as that judgment was set aside on 23 June 1992, giving the appellant leave to appeal on certain conditions.  In any event, it is my view that the appellant's application to set aside the default judgment made on 10 April 1989, given the chronology which I have outlined, is an abuse of the Court's process.

31. It is a fundamental principle of justice that the courts should be open to litigants but that right to proceed is not an unfettered one.  The Court has an inherent power to prevent misuse of its procedure if that misuse would bring the administration of justice into disrepute.  There are no fixed categories of the kinds of circumstances in which the Court has a duty to exercise a power to dismiss proceedings for abuse of process.

32. It is fundamental that a litigant only has a right to have her claim litigated provided it is not frivolous, vexatious or an abuse of process.  It is an abuse of the Court's process to mount a collateral attack on a final decision against a litigant which has been made by another court of competent jurisdiction in previous proceedings in which the litigant had a full opportunity to contest a decision in the court by which it was made.  As I have outlined, the appellant has had ample opportunity to do this.

33. So for those reasons, it is my view that the application which was made on 11 April 2007 to set aside the default judgment and this appeal against the decision of the Registrar dismissing the application on 19 April 2007 is an abuse of process, I would therefore dismiss the appeal.