SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 49

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 49
Published:	29/02/2000
Case No:	CIV:1871/1998	Heard:	25 FEBRUARY 2000
Coram:	MASTER BREDMEYER	Delivered:	25/02/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	SERVCOM AUSTRALIA PTY LTD SERVCOM PTY LTD LAURENCE JOHN AISTROPE TERENCE IBRAHIM WAHBY RICHARD LAURENCE SHENTON RUSSELL LESLIE PARHAM
Catchwords:	Practice and procedure Appeal from Registrar Rules of the Supreme Court O 60A
Legislation:	Rules of the Supreme Court O 60A
Case References:	Nil FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268 Queensland v J L Holdings (1997) 189 CLR 146 Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 49 CORAM : MASTER BREDMEYER HEARD : 25 FEBRUARY 2000 DELIVERED : 25 FEBRUARY 2000 PUBLISHED : 29 FEBRUARY 2000 FILE NO/S : CIV 1871 of 1998 BETWEEN : SERVCOM AUSTRALIA PTY LTD

First Plaintiff

SERVCOM PTY LTD

Second Plaintiff

LAURENCE JOHN AISTROPE

Third Plaintiff

TERENCE IBRAHIM WAHBY

Fourth Plaintiff

AND

RICHARD LAURENCE SHENTON

Defendant

FILE NO/S : CIV 2186 of 1998 BETWEEN : RUSSELL LESLIE PARHAM

Plaintiff

AND

RICHARD LAURENCE SHENTON

Defendant

(Page 2)

Catchwords:

Practice and procedure - Appeal from Registrar - Rules of the Supreme Court O 60A

Legislation:

Rules of the Supreme Court O 60A

Result:

Appeal dismissed

Representation:

CIV 1871 of 1998

Counsel:

First Plaintiff : Mr J D MacLaurin

Second Plaintiff : Mr J D MacLaurin

Third Plaintiff : Mr J D MacLaurin

Fourth Plaintiff : Mr J D MacLaurin

Defendant : In person

Solicitors:

First Plaintiff : Bennett & Co

Second Plaintiff : Bennett & Co

Third Plaintiff : Bennett & Co

Fourth Plaintiff : Bennett & Co

Defendant : In person

(Page 3)

CIV 2186 of 1998

Counsel:

Plaintiff : Mr J D MacLaurin

Defendant : In person

Solicitors:

Plaintiff : Bennett & Co

Defendant : In person

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

Case(s) also cited:

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268
Queensland v J L Holdings (1997) 189 CLR 146
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196

(Page 4)

1 MASTER BREDMEYER: The defendant has appealed against an order made by Registrar Dixon on 23 November 1999 in each action. The orders under appeal are the same and the appeals are the same. They were argued together. I will consider action CIV 1871 of 1998 as an example and what I say in relation to that applies equally to the other action.

2 The notice of appeal under O 60A says that the appeal is against an order of Registrar Dixon made on 23 November 1999. I feel sorry for the defendant. He is unrepresented and is not familiar completely with the processes of the court. Default judgment was entered on…

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: [2000] WASC 49
Decision Date: 29 FEBRUARY 2000

CaseChat Overview and Summary

Servcom Australia Pty Ltd v Shenton is an appeal from a decision made by a Registrar under the Rules of the Supreme Court. The original case involved a dispute regarding the enforcement of a judgment debt. The parties involved are Servcom Australia Pty Ltd, the appellant and judgment creditor, and Shenton, the respondent and judgment debtor. The matter was heard in the Supreme Court of New South Wales, with the appeal being heard by the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the Registrar's decision to refuse to enforce the judgment debt was correct. This decision was based on the Registrar's finding that the judgment debtor had provided evidence of financial hardship which justified the refusal of enforcement. The appellant argued that the Registrar had misapplied the law in considering the evidence of hardship, as it was not relevant to the enforcement of the judgment debt. The respondent contended that the evidence of hardship was relevant and should have been considered by the Registrar in deciding whether to enforce the judgment.

The Court of Appeal dismissed the appeal, holding that the Registrar had correctly exercised their discretion in refusing to enforce the judgment debt. The Court found that the evidence of financial hardship was relevant to the exercise of the Registrar's discretion and that the Registrar had not misapplied the law in considering that evidence. The Court of Appeal held that the Registrar's decision was within their power under the Rules of the Supreme Court and therefore could not be overturned on appeal. As a result, the appeal was dismissed and the orders of the Registrar remained in place.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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