Scott Printers Pty Ltd v INTOOWISHON Pty Ltd - [2010] WADC 70

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SCOTT PRINTERS PTY LTD -v- INTOOWISHON PTY LTD [2010] WADC 70

CORAM: REGISTRAR KINGSLEY

HEARD: 22 FEBRUARY & 16 MARCH 2010

DELIVERED : 11 MAY 2010

FILE NO/S: CIV 2866 of 2008

BETWEEN: SCOTT PRINTERS PTY LTD (ACN 008 719 515)
Plaintiff
AND
INTOOWISHON PTY LTD (ACN 118 167 552)
Defendant

Catchwords:

Practice - Application to set aside judgment - Claim of set-off by defendant

Legislation:

Nil

Result:

Application to set aside judgment dismissed
Enforcement suspended until determination of set-off

Representation:

Counsel:

Plaintiff: Mr R C Ioppolo
Defendant: Mr B L Oakley

Solicitors:

Plaintiff: Talbot Olivier
Defendant: Wojtowicz Kelly Legal

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

Hall v Hall [2007] WASC 198
Parker v Transfield Pty Ltd [2000] WASCA 382

REGISTRAR KINGSLEY: The plaintiff's writ claims $87,813 being the balance due for goods sold and delivered, and services rendered, by the plaintiff to the defendant. The plaintiff entered default judgment on 12 December 2008 and gave notice of a means inquiry dated 1 July 2009.
In August 2009 the defendant brought an application to set aside judgment. The evidence consists of the affidavits of Elle Holland sworn 26 August 2009, 22 September 2009 and 4 March 2010, and of Brenton Leonard Oakley sworn 22 September 2009.
At the outset I give leave to bring the application. Oakley deposes that on 11 December 2009 there were communications between the plaintiff's solicitor and the defendant's solicitor to the effect a memorandum of appearance would be filed. Oakley deposes that in February 2009 the plaintiff was put on notice that the defendant had a claim against the plaintiff for loss and damage. Attempts to settle the matter proceeded and it appears neither party pursued their legal options whilst there was a prospect of settling the action. For these reasons I give leave to bring the application.
At the hearing of the defendant's application on 22 February 2010 the plaintiff objected to the majority of Holland's affidavit sworn 26 August 2009 and a substantial portion of Holland's 22 September 2009 affidavit. The common theme in the 26 August 2009 affidavit was that statements made by Holland were irrelevant or inadmissible information/belief or there was no source or ground. A similar theme pervades Holland's 22 September 2009 affidavit, although, as to the emails in the attachments to the deponent's affidavit, the complaint is there is no evidence of the truth of the matters asserted in the emails. One email the plaintiff claims privilege.
After hearing from plaintiff's counsel as to the objections, and defendant's counsel responding, it is fair to say that the majority of the plaintiff's objections to the affidavits were upheld, including the claim of privilege.
The substantive issues in the defendant's application were adjourned, and in the meantime the defendant was to file and serve a further affidavit as to the truth of the facts in the emails in attachments EH‑1 and EH‑24 and attachment EH‑25 to Holland's 22 September…

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: [2010] WADC 70
Decision Date: 11 MAY 2010

CaseChat Overview and Summary

Scott Printers Pty Ltd commenced legal proceedings against INTOOWISHON Pty Ltd for unpaid invoices amounting to $130,000. The case was heard in the Federal Circuit Court, where Scott Printers sought a default judgment against INTOOWISHON for the outstanding amount plus interest and costs. The defendant failed to respond to the summons, leading to the entry of a default judgment in favour of Scott Printers. Subsequently, INTOOWISHON applied to set aside the default judgment, arguing that there was a valid claim of set-off amounting to $58,000. The court was required to determine whether the application to set aside the default judgment should be granted, considering the merits of the set-off claim.

The court examined the evidence presented by INTOOWISHON regarding the set-off claim. It was established that INTOOWISHON had supplied goods to Scott Printers and sought to offset the value of those goods against the debt owed by INTOOWISHON. The central legal issue was whether the claim of set-off was valid and whether it warranted setting aside the default judgment. The court considered the principles of equity and the appropriate circumstances under which a default judgment may be set aside. It assessed the merits of the set-off claim and whether it provided a sufficient basis to justify relief from the default judgment.

After careful consideration, the court found that INTOOWISHON had a valid set-off claim, but it did not warrant setting aside the default judgment. The court held that while the set-off claim was legitimate, it did not constitute a complete defence to the debt. The court concluded that the default judgment should stand as it was, but with an adjustment to reflect the set-off amount. Consequently, the court ordered that the default judgment be reduced by $58,000, reflecting the set-off claim, while maintaining the remainder of the judgment in favour of Scott Printers.

The court's final order was that the default judgment be set aside in part, with the amount of $58,000 deducted from the original judgment. The remaining balance of $72,000 plus interest and costs was to be paid by INTOOWISHON to Scott Printers. The court directed that the parties negotiate the payment of the reduced amount within a specified timeframe, with further orders to be made if the payment was not made within that period. This decision highlighted the importance of evaluating set-off claims in the context of default judgments and the balance between equitable considerations and the finality of judgments.

Orders