Retravision (WA) Ltd v Starrs - [2010] WASC 373

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RETRAVISION (WA) LTD -v- STARRS [2010] WASC 373

CORAM: MASTER SANDERSON

HEARD: 21 OCTOBER 2010

DELIVERED : 13 DECEMBER 2010

FILE NO/S: CIV 2890 of 2009

BETWEEN: RETRAVISION (WA) LTD
Plaintiff
AND
CHRISTOPHER DAMIEN STARRS
First Defendant
JANINE RUTH STARRS
Second Defendant

Catchwords:

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

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr C F McLeod
First Defendant            :     In person
Second Defendant        :     In person

Solicitors:

Plaintiff:     Norton Rose Australia
First Defendant            :     In person
Second Defendant        :     In person

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

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

MASTER SANDERSON: This is the defendants' application to set aside a judgment entered in default of appearance. The judgment was entered on 4 February 2010. The application to set aside the judgment was made on 3 June 2010.
Default judgment was entered in unfortunate circumstances. The defendants attempted to enter an appearance but the documents were rejected by the court. It is clear the documents should not have been rejected. Of course if the documents had been accepted no default judgment could have been entered. However, there being no appearance, the plaintiff was entitled to default judgment and that default judgment is to be regarded as regularly entered.
It is important to note this is a regular judgment. It is perhaps open to question to what extent there must be an irregularity in the way judgment is entered to warrant a judgment being set aside. For instance, if the statement of claim endorsed on the writ overstated the amount of the claim, then the judgment would be irregular and would be set aside. But if the statement of claim was poorly pleaded and might be struck out in whole or in part, but nonetheless conveyed the nature of the plaintiff's claim, such that the defendants knew the case they had to meet, then the judgment might be regarded as regular. But these issues do not arise in this case. Properly considered, the judgment is regular.
In determining if a regular judgment ought be set aside, at least three factors need to be considered. First, the length of the delay. Second the reasons for the delay. Thirdly, whether or not the defendants have an arguable defence.
In this case the first two of those questions need not be considered in any detail. Although the judgment was entered in February and the application to set aside the judgment was not brought until June, the delay is explained. The defendants were concerned their appearance documents had been rejected. Effectively, they attempted to have the judgment set aside administratively. In my view, their position was understandable and the delay is adequately explained. The remaining issue then is whether they have a defence on the merits.
In considering this question, the convenient starting point is the statement of claim. The second defendant…

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 Retravision (WA) Ltd v Starrs

Details

AGLC: Retravision (WA) Ltd v Starrs [2010] WASC 373
Case: [2010] WASC 373
Decision Date: 13 DECEMBER 2010

CaseChat Overview and Summary

Retravision (WA) Ltd brought an action against Starrs for debt. Starrs did not respond to the claim, and a default judgment was entered. Starrs then applied to set aside the default judgment. The application was heard in the Supreme Court of Western Australia.

The primary legal issue for the court to determine was whether there were any circumstances that would justify setting aside the default judgment. Starrs argued that the guarantees were signed under duress and that there was some form of misleading or deceptive conduct by Retravision that might give rise to an estoppel or a claim under the Trade Practices Act 1974 (Cth). The court was required to assess these arguments to determine if they constituted a defence on the merits.

The court found that Starrs' arguments lacked sufficient evidence to support a defence. The court noted that the guarantees were not signed under duress as there was no applied pressure that went beyond what the law considered legitimate. Furthermore, there was no evidence of misleading or deceptive conduct by Retravision that could give rise to an estoppel or a claim under the Trade Practices Act. The court concluded that Starrs did not have a defence on the merits and that there was no point in setting aside the default judgment.

Accordingly, the court dismissed Starrs' application to set aside the default judgment and ordered Starrs to pay Retravision's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The circumstances in which a guarantee might be unenforceable by reason of duress was set out by McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40. His Honour said (46):[T]he proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. In the circumstances of this case there is nothing which would justify my concluding the defendants have any basis for alleging the guarantees were signed under duress. Finally, I can see nothing in the plaintiff's credit policy which justifies the allegation the plaintiff acted in some way which amounted to a breach of contract and which might render the guarantee unenforceable. As I have indicated above, the rights the plaintiff has pursuant to the guarantee and indemnity are broad and largely unrestricted. The fact the plaintiff did not reclaim possession of its stock was not a breach of the terms of its supply. It was under no duty to take that step. Nothing in what is contained in the defendants' affidavits nor in their submissions can provide any ground of defence. Leaving to one side the three areas it is possible to identify from the material lodged by the defendants, it might be said the defendants allege there was some form of misleading or deceptive conduct on the part of an officer of the plaintiff which might give rise to an estoppel or perhaps a claim under the Trade Practices Act 1974 (Cth). The fact is there is nothing in the evidence which could give rise to such a defence. Nothing is said about representations made by officers of the plaintiff. To possibly raise an arguable defence in this area much more would be needed than has presently been provided. In all the circumstances then I am satisfied that the defendants do not have a defence on the merits. There would be no point in setting aside the default judgment. The application ought be dismissed with costs.