Piscioneri v Smith - [2002] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PISCIONERI -v- SMITH [2002] WASC 202

CORAM: MASTER SANDERSON

HEARD: 6 AUGUST 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: CIV 2754 of 2001

BETWEEN: ARMANDO PISCIONERI
Plaintiff
AND
RODERICK JOHN SMITH
Defendant

Catchwords:

Practice and procedure - Application to set aside default judgment regularly entered - Turns on own facts

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff: Mr E W L Greaves
Defendant: Mr M D Evans

Solicitors:

Plaintiff: Mossensons
Defendant: Corsers

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

Parker v Transfield Pty Ltd [2000] WASCA 382

Case(s) also cited:

Evans v Bartlam [1937] AC 473
Jacob v Booth's Distillery Co (1901) 8 LT 262
Palmer v Prince [1980] WAR 61
Richardson v Howell (1892) 8 TLR 445
Rolland v Bank of Western Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
Say v Fitzpatrick, unreported; SCt of WA; Library No 6865; 14 September 1987
White v Johnston (1886) 8 ALT 53

MASTER SANDERSON: This is the defendant's application to set aside default judgment entered on 19 February 2002. The application was brought on 29 May 2002, some 14 weeks after judgment was entered. However, the defendant says that he did not become aware of the entry of judgment until on or about 8 May 2002. Both counsel approached the matter on the basis that the relevant delay was 21 days - that is, the time that elapsed between the defendant learning of the default judgment and the application being brought to set the judgment aside.
The principles governing the setting aside of regular judgments are set out succinctly in Seaman, Civil Procedure Western Australia at par 13.10.6. In particular, the learned author refers to Parker v Transfield Pty Ltd [2000] WASCA 382 and says:
"The defendant must present a credible defence demonstrating that, if the default judgment were set aside and the matter were argued on its merits, the defendant would have a real prospect of success."
Both parties accepted that the success or failure of this application depended upon an assessment of whether or not the defendant had an arguable defence on the merits. To determine this question requires a brief consideration of the facts of the case.
In or about June 2001 the plaintiff and the defendant, who were both professional photographers, established a new business styled Stirling‑Smith Photography Pty Ltd. The business failed to prosper and the relationship between the plaintiff and the defendant steadily deteriorated. The business was operated from premises in Fremantle. These premises were leased in the name of the defendant. On or about 26 October 2001 the defendant gave the plaintiff a notice requiring him to vacate the premises by 9 November 2001. On 8 November 2001 the defendant changed the locks on the premises and thereby excluded the plaintiff. On 15 November 2001 the plaintiff issued these proceedings. He claimed damages for breach of a deed of partnership and further related relief and he also…

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.

Continue reading Piscioneri v Smith

Details

AGLC: Piscioneri v Smith [2002] WASC 202
Case: [2002] WASC 202
Decision Date

CaseChat Overview and Summary

In this matter, Armando Piscioneri, the plaintiff, brought an application against Roderick John Smith, the defendant, to set aside a default judgment that had been entered on 19 February 2002. The default judgment was entered after the plaintiff obtained an interlocutory injunction to restrain the defendant from excluding the plaintiff from certain premises. The defendant's application to set aside the default judgment was heard by Master Sanderson on 6 August 2002 and delivered on 14 August 2002.

The legal issue before the court was whether the defendant had an arguable defence on the merits that could potentially succeed if the default judgment were set aside. The court considered the evidence of both parties and concluded that the defendant had not presented a credible defence that could result in a successful outcome if the case were argued on its merits.

The court found that the defendant's evidence was unreliable and misleading, and there was no basis for suggesting that the dispute had been settled between the parties. The court was of the view that the defendant had intentionally misled the court by presenting evidence that was inconsistent with the plaintiff's evidence. Therefore, the court dismissed the defendant's application to set aside the default judgment.

The court ordered that the defendant pay the plaintiff's costs of the application on a full indemnity basis, subject to the defendant making submissions before the court made any order to that effect.

Orders