Restifo v W H Milne Properties Pty Ltd - [2004] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RESTIFO -v- W H MILNE PROPERTIES PTY LTD [2004] WADC 75

CORAM: COMMISSIONER GREAVES

HEARD: 19 FEBRUARY 2004

DELIVERED : 23 APRIL 2004

FILE NO/S: CIV 1093 of 2001

BETWEEN: PHILIP SANDY RESTIFO
Plaintiff (Respondent)
AND
W H MILNE PROPERTIES PTY LTD
Defendant (Appellant)

Catchwords:

Procedure - Appeal from Deputy Registrar - Application to set aside default judgment - Whether defendant in possession at date of plaintiff's accident - Real prospect of success demonstrated by defendant if evidence accepted at trial

Legislation:

Occupiers' Liability Act 1995

Result:

Appeal allowed
Judgment set aside
Leave to defend granted

Representation:

Counsel:

Plaintiff (Respondent) : Mr J R Criddle
Defendant (Appellant) : Mr S Penglis

Solicitors:

Plaintiff (Respondent) : Bradford & Co
Defendant (Appellant) : Freehills

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

Lovell v Western Australian Police Union & Anor, unreported; SCt of WA; Library No 930387; 30 June 1993

Case(s) also cited:

Crayden as Executor of the Estate of Sandra Irene Farnworth v Ottaviano & Anor; [2003] WASCA 20
Jones v Bartlett (2000) 205 CLR 166
Kostokanellis v Allen [1974] VR 596
National Australia Bank Ltd v Singh [1995] 1 Qd R 377
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd & Anor [2000] WASCA 382
Radaich v Smith & Anor (1959) 101 CLR 209
Rolland, Re; Ex parte Bank of Western Australia Ltd, FCA, BC9701003, 18 March 1997

COMMISSIONER GREAVES: This is an appeal against the decision of the learned Deputy Registrar dismissing the defendant's application to set aside judgment pursuant to O 13 r 10. The action concerns a claim for damages for personal injuries sustained by the plaintiff on 2 March 1996 at premises in Wellington Street, Perth. The defendant failed to enter an appearance to the writ and the plaintiff entered default judgment on 2 September 2002. Counsel for the appellant submitted the application to set aside default judgment should be considered and determined in accordance with the following principles:
"An application to set aside default judgment should be supported by affidavit evidence which discloses a defence on the merits and explains the failure to comply with the Rules and any delay in bringing the application: Palmer v Prince [1980] WAR 61 at 62.
For an application to set aside a default judgment to be successful, the defendant must present a credible defence demonstrating that, if the default judgment was set aside and the matter was argued on its merits, the defendant would have a real prospect of success: Parker v Transfield Pty Ltd & Anor 2000, unreported judgment, Supreme Court of Western Australia Court of Appeal, Lib.
Delay by the party applying to set aside judgment does not necessarily defeat the application, but is one of a number of relevant considerations to consider according to the particular circumstances: Rolland v Bank of Western Australia, 1998, unreported, Supreme Court of Western Australia, Lib. 980498A.
The primary question is whether the defendant has a defence…

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: [2004] WADC 75
Decision Date: 23 APRIL 2004

CaseChat Overview and Summary

In the case of Restifo v W H Milne Properties Pty Ltd, the plaintiff, Restifo, sought to set aside a default judgment obtained by W H Milne Properties, the defendant. Restifo had originally sued W H Milne Properties for damages resulting from an accident that occurred on property owned by the defendant. The defendant failed to appear in court, leading to a default judgment being entered against them. Subsequently, the defendant applied to set aside this default judgment, claiming they were in possession of the property at the time of the accident and that there was a real prospect of successfully defending the action if the matter proceeded to trial.

The primary legal issue before the court was whether the defendant had demonstrated a real prospect of success in their defence, which would warrant setting aside the default judgment. The court needed to determine if the defendant had presented sufficient evidence to show that they were in possession of the property on the date of the accident and if accepting the defendant's evidence at trial would lead to a real prospect of success. This determination hinged on the interpretation of the defendant's affidavit and the supporting evidence provided.

The court considered the affidavit provided by the defendant, which stated they were in possession of the property at the time of the accident. The court acknowledged that the defendant's failure to appear in court was not due to any fault on their part. Additionally, the court examined the evidence suggesting that if the defendant's account of events was accepted, it would lead to a real prospect of successfully defending the action. The court concluded that the defendant had indeed demonstrated a real prospect of success and that it was in the interests of justice to set aside the default judgment. Consequently, the application to set aside the default judgment was successful.

The court ordered that the default judgment be set aside and that the matter proceed to trial on the substantive merits. This decision allowed the defendant the opportunity to present their defence and for the court to make a determination based on the evidence presented at trial.

Orders