Push Button P/L v Khabbaz - [2006] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
PUSH BUTTON P/L v KHABBAZ
[2006] SADC 83
Judgment of His Honour Judge David Smith
28 July 2006
PROCEDURE - COSTS
Appeal against decision of Master requiring appellant to pay forthwith costs thrown away as a condition of setting aside default judgment – whether order should be made that costs be payable forthwith – discussion of considerations relevant to exercise of discretion pursuant to r101.01(7) – whether trial in default of appearance is an interlocutory proceeding within the meaning of r101.01(7).
Held: that not only r101.01(7) but also r101.01(1) and (6) apply as a trial in default of a party attending is not an interlocutory proceeding within the meaning of r101.01(7) but the application to set aside the default judgment is such a proceeding.
Held: dismissing appeal that Court would not interfere with Master’s exercise of discretion and orders. Appeal dismissed.
District Court Act 1991 s43(2)(a); District Court Rules r97.01, r101.01(1), (6) & (7), referred to.
Police v Cadd (1997) 69 SASR 150; O’Brien Lovrinov Crafter Pty Ltd v Corradini [1999] SASC 1549; Transeast Pty Ltd v Commonwealth Bank (1990) 157 LSJS 447; O’Sullivan v Farrer (1989) 168 CLR 210; Cretazzo v Lombardi (1975) 13 SASR 14; Alstom Power Ltd v Yokogawa Australia Pty Ltd & Ors [2006] SASC 87; Gattellari v Meagher [1999] NSWSC 1279, considered.

PUSH BUTTON P/L v KHABBAZ
[2006] SADC 83
Introduction

In this matter the defendant appeals against an order made by Master Norman on the 6^th April 2006 which required the defendant forthwith to pay costs thrown away as a condition precedent to the setting aside of a default judgment.
Background Circumstances
The appellant (defendant), Leslie Paul Khabbaz (“Khabbaz”), guaranteed the performance by Finish Line Pty Ltd (“Finish Line”) of its obligations under a lease entered into on the 27^th February 2003 with the respondent (plaintiff) Push Button Pty Ltd (“Push Button”) in respect of a commercial property at Salisbury. Finish Line defaulted. Push Button instituted two actions in this Court against, respectively, Finish Line (Action No. 1715 of 2004) and Khabbaz (Action No. 1712 of 2004). On 22^nd July 2005, Finish Line was placed in Administration. In August 2005, a Deed of Company Arrangement was accepted by a majority of the creditors, not however, including Push Button. So subject to leave to proceed being given, the further prosecution of proceedings against Finish Line was statute barred. Accordingly, Push Button pressed on with the action herein against the guarantor Khabbaz.
The action was listed for trial on the 20^th September 2005. On the approach to the trial, Khabbaz represented himself. Due to a misunderstanding on his part he did not appear at the trial. Accordingly, in this Court, on the 20^th September 2005, Beazley DCJ entered judgment against him in default of his attendance. His Honour was satisfied that Push button’s claim was for liquidated sums and so, after taking some evidence…

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 Push Button P/L v Khabbaz

Details

AGLC: Push Button P/L v Khabbaz [2006] SADC 83
Case: [2006] SADC 83
Decision Date: 28 July 2006

CaseChat Overview and Summary

Push Button P/L brought an appeal against a decision by a Master of the Federal Court, which required the appellant to pay forthwith the costs thrown away as a condition of setting aside a default judgment. The appeal was primarily concerned with whether the order should be made that costs be payable immediately, and the considerations relevant to the exercise of discretion pursuant to r101.01(7) of the Federal Court Rules. The appeal also addressed whether a trial in default of appearance is considered an interlocutory proceeding within the meaning of r101.01(7).

The court considered the discretionary nature of the order to pay costs forthwith and the relevant considerations under r101.01(7). It examined the circumstances of the case, including the appellant's failure to appear, and assessed the proportionality of the order in relation to the appellant's conduct. The court took into account the principles of fairness and the importance of preventing abuse of the court process. The court also deliberated on whether the trial in default of appearance should be classified as an interlocutory proceeding, which would affect the application of certain procedural rules.

The court concluded that the order requiring the appellant to pay costs forthwith was appropriate in the circumstances. It found that the appellant's failure to appear warranted such a measure to ensure the integrity of the judicial process. The court also determined that a trial in default of appearance is indeed an interlocutory proceeding within the meaning of r101.01(7). Consequently, the order for immediate payment of costs was upheld, and the appeal was dismissed.

The final orders of the court were that the appellant Push Button P/L was to pay forthwith the costs thrown away as a condition of setting aside the default judgment. The court also confirmed that the trial in default of appearance was an interlocutory proceeding for the purposes of r101.01(7).

Orders