Radiant Nominees Pty Ltd v Australian Crane and Machinery Pty Ltd - [2018] WADC 87

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   RADIANT NOMINEES PTY LTD -v- AUSTRALIAN CRANE AND MACHINERY PTY LTD [2018] WADC 87
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   12 JULY 2018
DELIVERED          :   27 JULY 2018
FILE NO/S:   CIV 3783 of 2016
BETWEEN:   RADIANT NOMINEES PTY LTD
Plaintiff

AND

AUSTRALIAN CRANE AND MACHINERY PTY LTD
Defendant

Catchwords:

Practice and procedure application to set aside judgment obtained as a result of non-compliance with a springing order - Judgment obtained for a combination of breach of contract - Breach of Australian Consumer Law and in tort - Whether judgment irregular

Legislation:

Nil

Result:

Judgment held to be irregular and set aside

Representation:

Counsel:

Plaintiff	:	Mr P J Hannan
Defendant	:	Mr E Ferreira

Solicitors:

Plaintiff	:	Hale Legal
Defendant	:	Douglas Cheveralls Lawyers

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

Personal Representatives of Tang Man Sit v Capacious Investments [1996] 2 WLR 192
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

DEPUTY REGISTRAR HEWITT:

This action commenced by a writ of 13 October 2016 to which the defendant appeared on 8 November 2016. A statement of claim was filed on 10 November 2016 and a defence on 28 November 2016. By consent order dated 9 February 2017 the parties agreed that discovery be given by 3 March 2017. An affidavit by the defendant was filed on 22 March 2018, but no point is taken over the lateness of that affidavit. By consent 22 April 2018 it was ordered that the defendant make a list of any further documents which are or have been in its possession, custody or power relating to any matter in question in the action and provide copies of the documents so discovered.
Further, orders were made intended to lead to a mediation between the parties. No further affidavit was forthcoming from the defendant and on 31 July 2017 further consent orders were lodged extending the time for compliance with the orders made on 27 April to 4 August and providing that in the event of default the defendant's defence be struck out and judgment entered for the plaintiff, with damages to be assessed together with costs. No further affidavit of discovery was filed and as a consequence on 8 August the court ordered that the defendant's defence be struck out and judgment entered for the plaintiff for damages to be assessed together with costs. That judgment was perfected on 11 August 2017. On 3 January 2018 the plaintiffs applied for orders for an assessment of damages pursuant to the judgment.
By order dated 31 January 2018 orders for the assessment of damages were made. On 20 April the defendant filed an application to set aside the judgment and an affidavit of the defendant in support of that application. Additionally a Notice of Intention to cross-examine the deponents of affidavits replied upon by the plaintiff in the assessment and a short while later a further affidavit was filed by the defendant providing further discovery in the action. Whilst it might be debated that the original order was ambiguous, failing to make it clear whether or not an affidavit was required to be filed the affidavit of 23 April 2018 makes it clear that there were further documents. Additionally the consent of the defendant to extend the time for compliance with the order in my view is eloquent of the fact that the defendant conceded its discovery to be inadequate.
On an application to set aside a regularly entered judgment of the kind relevant in this case it is necessary for the applicant to satisfactorily explain its failure to comply with the terms of the order and additionally to disclose materials which reveal a defence on the merits.
As to the failure to comply with the orders the affidavit of material simply alleges the failure of various employees of the company and others to bring to his attention the existence of the springing order and the need to comply with it. The blame for the state of affairs is cast far and wide but I would have thought that the sole director of the defendant company, engaged as that company was in litigation, should have, and would have, paid more attention to the manner in which the action was progressing and his duties and responsibilities in relation to that action.
In short I find the explanation offered by the defendant thin. As to the defence on the merits it is conceded that there were some defects which required rectification and were rectified but the defendant disputes the fact that the equipment supplied was not of merchantable quality and unfit for the purpose for which it was procured. Again, the evidence advanced is not wholly convincing.
At the conclusion of argument I raised an issue which was of concern to me and upon which I wished to hear argument. That issue involves the manner in which the case has been pleaded. The critical provisions of the pleading are par 16 and thereafter which are
as a result of the defendant's breach of contract or the Australian Consumer Law or, alternatively, negligence the plaintiff has suffered loss and/or damage particulars [of which] to be provided prior to trial.
And the plaintiff claims damages for breach of contract or, alternatively, negligence or, alternatively, contravention of the Australian Consumer Law.
My concern is that expressed as a series of alternatives the judgment might be defective for the reason that it did not specify which of the alternatives form the basis of the judgment. That could have importance because the manner of assessment of damages between contract and the Australian Consumer Law and negligence are not necessarily the same. I have received written submissions from both parties on the issue. Unsurprisingly, the defendant contends that the judgment should be set aside as of right for irregularity. In my view that requires an investigation as to the manner in which damages are to be assessed on the alternative causes of action advanced by the plaintiff. The basis of assessment of damages for tort, and usually breaches of the Australian Consumer Law are on the tortious basis namely that the plaintiff should be compensated for its loss. On the other-hand contractual claims are to be compensated on the basis of the benefit which would have flowed to the plaintiff had the contract been performed according to its terms. In the present case the position is clouded by the fact that the plaintiff in its pleading has not chosen to particularise the loss and damage which it seeks. It is therefore impossible to draw a conclusion as to what exactly the plaintiff is claiming. That deficiency makes it extremely difficult to conclude whether or not it would have been appropriate for the plaintiff to identify the cause of action in respect of which it sought damages to be assessed. Counsel for the plaintiff has quoted a passage from the decision of Brennan J in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (611 - 612):
When the same facts supports rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving remedy in respect of more than one right … he may pursue his remedies concurrently in the same action but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all the rights which he might have claimed in that litigation are merged in the judgment.
Counsel contends that statement to be too widely expressed but none of the cases upon which counsel bases that view are of an equal authority to the High Court's decision. I do accept that in some instances the difference between an assessment on a tortious basis or an assessment on a contractual basis may differ, and in some they may be very much the same. In the present case however there are huge differences which although not revealed by the pleading are revealed by affidavits which have been filed which reveal other claims regarding the hiring of replacement equipment and indicate something in the order of in excess of $100,000 for hiring replacement equipment and repairs appear to be claimed. None of those matters are pleaded of course but would only be obtainable if the damages were assessed on the basis of contract.
It is argued by the plaintiff that the remedies sought by the plaintiff could be properly characterised as cumulative. I do not accept that proposition. The assessment of damages on the tortious basis provides a complete remedy for the wrong pursued in the writ. Likewise the assessment of damages on the basis of a contract provides a complete remedy for the matters in the writ. It is not the case that it is possible to obtain a tortious remedy for one part of claim and a contractual remedy for some other part of the claim and call them cumulative. In my view it is one or the other and Brennan J was correct in his articulation of the law and it was necessary for the plaintiff in entering a default judgment to elect which of the alternatives pursued in the writ is to form the basis of the assessment of damages to be paid. That is particularly so when the writ contains no detail of what is described as the loss and/or damage sought to be recovered from the defendant.
I am reinforced in my view by the decision of the Privy Council in PersonalRepresentatives of Tang Man Sit v Capacious Investments [1996] 2 WLR 192. At [197] the court stated:
Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both. The basic principle governing when a plaintiff must make his choice is simple and clear. He is required to choose when, but not before, judgment is given in his favour … .
It is therefore my view that notwithstanding the manner in which the defendant has conducted itself the judgment does not provide a proper basis upon which a judicial officer could properly know the basis upon which damages were to be assessed and as a consequence what evidence may or may not be admissible in that process. I characterise the judgment as irregular and consider that it should be set aside as of right, which is the order which I shall make.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
27 JULY 2018