JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PARTNERS WEALTH GROUP PTY LTD -v- ARMSTRONG [2024] WASC 462
CORAM: HOWARD J
HEARD: 28 NOVEMBER 2024
DELIVERED : 4 DECEMBER 2024
FILE NO/S: CIV 1304 of 2024
BETWEEN: PARTNERS WEALTH GROUP PTY LTD
Plaintiff
AND
BENJAMIN ARMSTRONG
Defendant
Catchwords:
Practice and procedure - Application to set aside default judgment - Default judgment sought without notification or conferral - Defendant attempting to rely on proposed defence - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 13 r 14
Result:
Default judgment set aside
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms R O'Brien |
| Defendant | : | Mr J Jo |
Solicitors:
| Plaintiff | : | Partners Legal Solutions |
| Defendant | : | DFG Legal |
Case(s) referred to in decision(s):
Smith v Nomad Modular Building [2007] WASCA 169
Starrs v Retravision (WA) Ltd [2012] WASCA 67
HOWARD J:
(These reasons were delivered extemporaneously and have been lightly edited from the transcript.)
By a writ of summons endorsed with a statement of claim, the plaintiff commenced these proceedings against the defendant on 18 March 2024.
In outline, the plaintiff pleaded:
1.the defendant was employed by it as a financial advisor from about 22 April 2014 until about 23 January 2024;
2.the defendant was employed pursuant to a written employment agreement;
3.the defendant owed the plaintiff equitable duties;
4.in January 2024, the defendant joined a direct competitor of the plaintiff in a similar role as his position with the plaintiff;
5.on dates not precisely known in 2023 and 2024, the defendant solicited, encouraged or otherwise took steps to induce the plaintiff's clients away from the plaintiff;
6.the defendant, in so doing, breached the employment agreement and his equitable duties; and
7.as a result, the plaintiff had suffered loss or damage.
By its Prayer for Relief, the plaintiff seeks:
1.damages;
2.equitable compensation;
3.account of profits;
4.an injunction restraining the defendant from continuing to breach the employment agreement and his equitable duties; and
5.other ancillary relief.
The defendant did not enter an appearance.
By application dated 2 April 2024, the plaintiff sought default judgment with damages to be assessed. It is accepted that that application was made by the plaintiff without notice to the defendant's solicitors, or without conferral on the same, and was made very close in time to the earliest opportunity on which it could be made.[1]
[1] Affidavit of M O Ferguson sworn 2 April 2024 (Mr Ferguson's first affidavit) [5].
It seems to me that if the plaintiff's solicitors had extended what is sometimes said to be a 'courtesy' to the defendant's solicitors, then the overall matters in dispute might have been able to be progressed more expeditiously than they have been.
Nonetheless, the application for default judgment was supported by an affidavit of its solicitor made 2 April 2024, deposing to service of the writ on the defendant. After correspondence between the Court and the plaintiff's solicitors, there was a further affidavit of the plaintiff's solicitor filed 18 April…
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- Case
- [2024] WASC 462
- Decision Date
CaseChat Overview and Summary
[14] Starrs v Retravision (WA) Ltd [2012] WASCA 67 [36] (Allanson J, with whom Pullin & Murphy JJA agreed). [15] This was the equivalent provision to the current O 13 r 14. [16] In argument in Court on 28 November 2024, that was referred to as the contractual defence, or interpretation issue, ts 12 and 16 - 17. [17] Affidavit of B Armstrong sworn 4 September 2024 (Mr Armstrong's first affidavit) [54] and Attach 'BA‑11'; ts 12 and 20. [18] Mr Armstrong's first affidavit, Attach 'BA-1'. [19] Mr Armstrong's first affidavit, Attach 'BA‑2'.
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