RT Co Pty Ltd v Minister for the Interior - [1957] HCA 39

R. T. COMPANY PROPRIETARY LIMITED

APPLICANTS;

AND OTHERS

MINISTER OF STATE FOR THE INTERIOR RESPONDENT. High Court-Practice-Judgment by default-Setting aside-Claim against defend-

ants in alternative-Judgment against them jointly-Reliance by defendants in other proceedings on judgment-Delay in application to set aside-High Court MELBOURNE,

Rules (S.R. 1952 No. 23), O. 28, r. 2.

A writ was issued in respect of a claim arising out of the continued occupation by four defendants, or one of them, of land which had been compulsorily acquired by the Commonwealth. The claim was expressed against each of the defendants in the alternative. None of the defendants having delivered a defence judgment in default was entered that the plaintiff recover against the defendants the amount in question and costs.

Held, that the judgment was irregular in that it was against the defendants jointly whereas the claim had been against them in the alternative.

Currie v. May (1914) V.L.R. 17, distinguished. The irregular judgment was entered on 10th September 1956. In sub- sequent other proceedings between the parties the defendants relied on the existence of the judgment as establishing a tenancy of the land in the defend - ants as lessees from the Commonwealth. In June 1957 the defendants first applied to set aside the judgment.

Held, that these were matters for the imposition of conditions but not for refusing to set aside the judgment. SUMMONS.

R. T. Company Proprietary Limited, Radio Programme Pro- prietary Limited, Radio City Proprietary Limited and Henry Drysdale, applied on summons to Dixon C.J. in chambers to set aside a judgment entered against them in default of pleading on 10th September 1956. The respondent to the summons was the Minister of State for the Interior.

The facts are fully set out in the judgment of Dixon C.J. hereunder.

98 CLR 169

R. M. Northrop, for the applicants. L. Voumard Q.C. and J. A. Nimmo Q.C., for the respondent.

DIXON C.J. delivered the following oral judgment This is an application on the part of the defendants in an action to set aside a judgment entered in default of delivery of a defence as required by the Rules. The judgment is for a large sum of money and is entered as for default of defence under O. 28, r. 2 to a claim for a debt or liquidated demand. The writ was issued by the Minister for the Interior suing on behalf of the Common- wealth in respect of a claim arising out of the continued occupation by the defendants, or one of them, of land which had been com- pulsorily acquired by the Commonwealth. The claim, however, against the defendants of whom there are four, one natural person and three companies incorporated under the Companies Act of Victoria, was expressed in the alternative. There are really three alternative claims made against the defendants. Firstly for a sum of money, and alternatively for the same sum of money as damages and again alternatively for an account of rents and profits received by the…

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: [1957] HCA 39
Decision Date: 26 June 1957

CaseChat Overview and Summary

In this matter before the High Court, the applicants, R. T. Company Proprietary Limited and three other defendants, sought to set aside a default judgment entered against them. The original claim arose from the defendants' continued occupation of land compulsorily acquired by the Commonwealth, with the Minister for the Interior as the respondent. The plaintiff's claim was framed in the alternative against each of the four defendants.

The central legal issue before the Court was whether the default judgment, which was entered against all defendants jointly, was irregular given that the original claim had been made in the alternative. The Court was also required to consider the impact of the defendants' delay in applying to set aside the judgment and their subsequent reliance on its existence in other proceedings.

Dixon C.J. held that the judgment was irregular because it imposed joint liability on the defendants, whereas the claim had been made against them in the alternative. The Court distinguished the present case from *Currie v. May*, noting that the latter involved alternative claims against a single defendant, not alternative claims against multiple defendants. Despite the delay and the defendants' prior reliance on the judgment, the Court determined that an irregular judgment should not remain on the record.

Consequently, the Court ordered that the default judgment of 10th September 1956 be set aside as irregular. This was conditional upon the defendants paying the plaintiff's taxed costs incurred after the judgment, excluding the costs of the summons. The plaintiff was granted liberty to amend the statement of claim, and the defendants were required to file their defence within seven days of the delivery of the amended statement of claim.

Orders