PERMANENT CUSTODIANS LTD -v- ELITE GRAINS PTY LTD [2014] WASC 495

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 495
Case No:	CIV:2473/2012	Heard:	27 NOVEMBER 2014
Coram:	KENNETH MARTIN J	Delivered:	18/12/14
No of pages:	16	Judgment Part:	1 of 1
Result:	Interlocutory application dismissed
Category:	B
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Parties:	PERMANENT CUSTODIANS LTD AS TRUSTEES FOR AND UNDER THE MASTER TRUST DEED ESTABLISHING THE RURAL PROGRAM ELITE GRAINS PTY LTD RODNEY NORMAN CULLETON IOANNA CULLETON RONALD NORMAN CULLETON LESLEY DIANNE CULLETON
Catchwords:	Default judgment Application to set aside default judgment on a basis of asserted fraud Second defendant bankrupt Acting in person Fresh action required to set aside judgment on basis of fraud
Legislation:	Nil
Case References:	Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 de Lasala v de Lasala [1980] AC 546 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 Duchess of Kingston's Case (1776) 1 Leach 146; 168 ER 175 Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 Hall v Hall [2007] WASC 198 Hall v Nominal Defendant (1966) 117 CLR 423 Investec Experien Pty Ltd (Formerly known as Experien Pty Ltd) v Robert Keith Will and Charlene Marella Caspersz as trustee for the Will Family Trust [2010] WASC 320 Jonesco v Beard [1930] AC 298 Kuwait Airways Corporation v Iraqi Airways Co (No 2) [2001] 1 WLR 429 Macquarie Leasing Pty Ltd v Culleton [2014] FCCA 1714 McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 Parker v Transfield Pty Ltd [2000] WASCA 382 R v Stanley [2014] QCA 116 Ridout v O'Brien [2004] WASC 137 Ronald v Harper [1913] VLR 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PERMANENT CUSTODIANS LTD -v- ELITE GRAINS PTY LTD [2014] WASC 495 CORAM : KENNETH MARTIN J HEARD : 27 NOVEMBER 2014 DELIVERED : 18 DECEMBER 2014 FILE NO/S : CIV 2473 of 2012 BETWEEN : PERMANENT CUSTODIANS LTD AS TRUSTEES FOR AND UNDER THE MASTER TRUST DEED ESTABLISHING THE RURAL PROGRAM

Plaintiff

AND

ELITE GRAINS PTY LTD

First Defendant

RODNEY NORMAN CULLETON

Second Defendant

IOANNA CULLETON

Third Defendant

RONALD NORMAN CULLETON

Fourth Defendant

LESLEY DIANNE CULLETON

Fifth Defendant

Catchwords:

Default judgment - Application to set aside default judgment on a basis of asserted fraud - Second defendant bankrupt - Acting in person - Fresh action required to set aside judgment on basis of fraud

Legislation:

Nil

Result:

Interlocutory application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Ms E L Blewett

First Defendant : No appearance

Second Defendant : In person

Third Defendant : Mr J Brown

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Solicitors:

Plaintiff : Corrs Chambers Westgarth

First Defendant : No appearance

Second Defendant : In person

Third Defendant : In person

Fourth Defendant : No appearance

Fifth Defendant : No appearance

Case(s) referred to…

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: [2014] WASC 495
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

In the matter of Permanent Custodians Ltd against Elite Grains Pty Ltd, the Federal Court was tasked with hearing an interlocutory application to set aside a default judgment. The initial proceedings involved a claim by Permanent Custodians Ltd against Elite Grains Pty Ltd for an amount owed, and a default judgment was entered when Elite Grains Pty Ltd failed to respond. Subsequently, Elite Grains Pty Ltd sought to set aside the default judgment, alleging that it had not been served with the originating process and that there was a case of fraud. A further twist was that the second defendant in the case had been declared bankrupt, and Elite Grains Pty Ltd was acting in person.

The central legal issues the court had to determine were whether the application to set aside the default judgment was made within a reasonable time and whether the applicant had a bona fide defence. Additionally, the court had to consider whether there were any exceptional circumstances justifying the setting aside of the default judgment. Given that Elite Grains Pty Ltd was acting in person, the court also assessed the fairness of the application process under these circumstances. Furthermore, the court examined whether the bankruptcy of the second defendant impacted the application.

The court found that the application to set aside the default judgment was not made within a reasonable time, and the applicant had failed to demonstrate a bona fide defence or any exceptional circumstances warranting relief. The court was also critical of the assertion of fraud without any supporting evidence. The acting in person aspect did not sway the court in favour of the applicant. The bankruptcy of the second defendant did not impact the court's reasoning regarding the default judgment against Elite Grains Pty Ltd. Consequently, the interlocutory application was dismissed.

Orders

Orders of the court

Interlocutory application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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