Rando v Dedic - [2021] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   RANDO -v- DEDIC [2021] WADC 109
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   10 NOVEMBER 2021
DELIVERED          :   25 NOVEMBER 2021
FILE NO/S:   CIV 1511 of 2021
BETWEEN:   DIANNE KAYE RANDO
Plaintiff

AND

IZET DEDIC
Defendant

Catchwords:

Practice and procedure - Application to set aside judgment - Discussion of principles - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr J C Hammond
Defendant	:	Mr A E Lynn

Solicitors:

Plaintiff	:	Hammond Legal
Defendant	:	Andrew Lynn Lawyers

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

Nil

DEPUTY REGISTRAR HEWITT:

In this matter the plaintiff commenced an action against the defendant on 5 May 2021. The cause of action which she pursued was for damages to be assessed in relation to a Mercedes Benz motor vehicle which it was alleged had been taken from her possession and registered in the name of the defendant in circumstances which gave her an entitlement to damages for that conduct.
The writ was served on 1 June 2021 and a judgment was entered almost two months later on 20 July 2021. The plaintiff then set about progressing the action to an assessment of damages. The date for the assessment of damages was set down to be 22 September 2021 and the defendant was served on 4 September 2021 with an accompanying letter, a copy of the judgment and three affidavits which were intended to be relied upon in the assessment.
On 14 September 2021 the defendant applied to set aside the judgment. In support of that application the defendant filed an affidavit dated 14 September 2021.
As I understand the law in an application of this kind, it is necessary for the applicant to do two things:
(a)he must explain why it was that he failed to file an appearance in the proceedings; and
(b)disclose a defence on the merits.
Prior to the writ being issued the solicitors for the plaintiff sent a letter of demand to the defendant, that letter being received by the defendant shortly before Christmas 2020. The defendant took no steps to respond to the letter or respond to the writ which was served on 1 June 2021 and indeed has done nothing in regard to the action until he became aware that an assessment of damages was about to proceed.
The only explanation which is offered by the defendant of these failures was that English is not his first language and he made an enquiry about getting legal advice but he did not follow through. It is the evidence of the plaintiff that the defendant migrated to Australia in the early 1980s. Whilst I accept that he may not have had as fluent a command of English as others, it seems unlikely that he was handicapped to the extent that he did not know what was going on. The fact that the defendant made some overtures to obtain legal advice suggested that he did have a grasp of what the import of the documents with which he had been served might have been.
My summary of the evidence advanced by the defendant concerning his failure to respond to the writ is that his explanation is unsatisfactory. He had already received a letter which had prompted him to make some attempts to get legal advice. He then received an official document with the court seal on it, quite obviously emanating from the District Court of Western Australia, and he still continued to do nothing.
It may be however, that even a very thin explanation of the failure to act would be sufficient to justify overturning a default judgment if the case which was advanced by the defendant was a strong one. The defendant alleges that he purchased the vehicle for $11,000 in cash of which $8,000 was presumably cash on hand and the balance he withdrew from the bank. No documentary evidence to support the bank withdrawal is presented and no receipt is before me. There is however, a disposal of vehicle form apparently signed by the plaintiff. In that regard the plaintiff says that although she signed the form, it was blank and not to consummate a sale of the vehicle but to be presented by the defendant with whom she had had a long acquaintance to give authority to the defendant and assist in discussing certain issues relating to the vehicle with the party who was restoring it. A number of issues arise in regard to this situation.
According to the defendant at the relevant time the vehicle had no wheels and the body was resting on the ground and had no radiator and was in a fairly derelict state of repair. Against that information, it must be said that the evidence which is available from the plaintiff, substantially supported by documentary evidence, is that she had spent approximately $146,000 on the vehicle to have it restored and had bought it for $22,000 initially. In regard to the allegation as to the condition of the vehicle, those materials contradict the assertion by the defendant that it was in poor condition and in a fairly derelict state.
Although the defendant alleges he spent some $90,000 on repairs to the vehicle, two matters are of note:
1.No documentary evidence to support the allegation has been produced.
2.The repairs appear to have been largely mechanical whereas the repairs carried out by the plaintiff were to the body work trim etc and nothing, if anything, seems to have been to those items by the defendant. That suggests that the description of the vehicle as derelict is open to doubt.
By an affidavit of Jason Werner Edlinger affirmed 27 August 2021 exhibits an email forwarded to the plaintiff from the restorer in which Mr Edlinger, the general manager of Stuttgart Motors, said:
… the vehicle has been re-trimmed and is ready for collection back to our shop, to do the final fit up and drive.
Additionally, the email referred to a deposit which had been paid of $11,575.60, and some further expenses, leaving a balance of $32,761.58, the payment of which was requested in order to complete the final repairs.
The affidavit of Stephen Frederick Beauglehole affirmed 30 August 2021 was filed in support of the application for assessment of damages, Mr Beauglehole, the dealer principal of a Mercedes Benz dealership in Bunbury since 2003 gave an estimate of the value of the vehicle relying on material which was supplied to him by the plaintiff's solicitors at between $150,000 ‑ $160,000. Mr Beauglehole was not able to inspect the vehicle and, as a consequence, his estimate is open to question. However, given that the plaintiff paid a purchase price of $22,000 and has paid approximately $146,000 in the way of restoration works, obviously the vehicle had a far greater value than the $11,000 which the defendant says he purchased it for.
There are a number of factors which, in combination, lead me to the conclusion that I should dismiss the present application. The first is the complete lack of any acceptable explanation for the failure to file an appearance to the writ. Secondly, the description by the defendant when he took possession of the vehicle as it being derelict is completely at odds with the amount spent on restoring it and the photographs of it in its restored condition. It is simply not possible to reconcile the defendant's description of the vehicle with the photographs which are presented to me of the same vehicle.
As I have said, these factors in combination persuade me that the judgment should not be set aside and that is the order which I make in this matter.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
18 NOVEMBER 2021