S&v Nominees Pty Ltd v Rignanese - [2006] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
S&V NOMINEES PTY LTD v RIGNANESE & ANOR
[2006] SASC 138
Reasons of Judge Lunn a Master of the Supreme Court
12 May 2006
PROCEDURE
Application to set aside judgment in default of defence - judgment regularly obtained - affidavits of defendants showing only a possibilituy of a defence on the merits if further documents about the complicated transactions in question could be found - held defendants had not satisfied the onus on them to show they had a bona fide and plausible defence - application dismissed.

S&V NOMINEES PTY LTD v RIGNANESE & ANOR
[2006] SASC 138
Reasons on Defendants’ application to set aside the default judgment prior to its liquidation on 13 December 2002.

JUDGE LUNN: Prior to its liquidation on 13 December 2002 the plaintiff, S & V Nominees Pty Ltd (“S & V”), was a company controlled by Antonio and Kathy Rignanese. Antonio is the brother of the first defendant. The two defendants (Giovanni Rignanese and Giovanna Rignanese) (“G & G”) were the controllers of Rignanese Pty Ltd, which also went into liquidation in 2004 Since the events to be related below there has been a major falling out between the two Rignanese families.
Up until 1999 S & V owned land at Gawler Road, Virginia, being Lots 11 and 12 and comprised in Certificates of Title 5096/746 and 5180/2 (“the Gawler Road land”). It was subject to a mortgage to the Commonwealth Bank.
The claim in this action arose against the background of the following three inter-related property transactions. On 16 February 1999 S & V apparently entered into a contract with Metro Meat International Ltd (“Metro”) to purchase several allotments of land at Taylors Road, Virginia. By a Deed dated 20 March 1999 S & V assigned to Antonio Rignanese the benefit of its contract for the purchase of some, but not all, of the Metro land for $182,000. By a Deed dated 15 April 1999 S & V assigned to Rignanese Pty Ltd its interest in the purchase of the balance of the Metro land for a consideration of $978,000 plus a re-imbursement of $42,155, apparently representing part of a deposit paid by S & V to Metro.
By a transfer dated 3 May 1999 S & V transferred to G & G personally the Gawler Road land for a stated price of $285,000. The transfer acknowledged the receipt by S & V of the purchase price, but it was common ground that it was not paid. The mortgage given by S & V to the Commonwealth Bank was also discharged apparently by a payment of $52,650, but the source of that money is unknown. G & G then became the registered proprietors of the Gawler Road land.
By a transfer dated 12 July 1999 Metro transferred to Rignanese Pty Ltd most of the land which had been the subject of the contract of sale for a stated price of $978,000. Part of this purchase price…

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: [2006] SASC 138
Decision Date: 12 May 2006

CaseChat Overview and Summary

S&V Nominees Pty Ltd, a company that was previously controlled by Antonio and Kathy Rignanese, filed a lawsuit against Giovanni and Giovanna Rignanese, seeking to recover a debt of $231,456. The defendants, Giovanni and Giovanna, sought to set aside the default judgment that was obtained against them due to their failure to file a defence within the required time. The court was required to determine whether the defendants had a plausible and bona fide defence that would warrant setting aside the default judgment.

The court found that the defendants had not demonstrated a plausible and bona fide defence to the claim. They had merely suggested that further investigations might reveal a basis for a defence, but this was not enough to satisfy the onus on them to show a plausible and bona fide defence. The defendants had not been able to show in any plausible way that they had effectively discharged their liability to S&V. The court also noted that the defendants had not provided a sufficiently plausible explanation for their delay in filing a defence.

The court dismissed the application to set aside the default judgment and ordered the defendants to pay the plaintiff's costs of the application. The court found that the defendants had not satisfied the onus on them to show they had a bona fide and plausible defence to the claim.

The final orders of the court were that the application to set aside the default judgment was refused, the defendants were to pay the plaintiff's costs of the application, and time for any appeal was extended to 14 days from the date of the order.

Orders