SHILKIN -v- TAYLOR [2011] WASCA 255
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 255 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:11/2011 | 19 OCTOBER 2011 | |
| Coram: | PULLIN JA BUSS JA NEWNES JA | 18/11/11 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEVEN ANDREW SHILKIN COLIN HOWARD TAYLOR JENNIFER ELLEN BAKER HOMESTEAD FURNITURE NOMINEES PTY LTD ANNE MARGARET SHILKIN |
Catchwords: | Practice and procedure Application by appellant to set aside default judgment Magistrates Court (Civil Proceedings) Act 2004 (WA), s 18(2), s 19(3) Principles to be applied Whether defence has 'reasonable prospect of succeeding' Admission of new evidence on appeal Relevant principles Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4) Real property Lease Default by appellant/lessee in payment of rental Appellant contended first respondents/lessors not entitled to rely on default because caused by first respondents' conduct Alleged that first respondents lured nearby businesses to move to new premises causing loss of custom to appellant's business and inability to pay rental No wrongful act by first respondents alleged No evidence first respondents caused nearby businesses to move No derogation from grant of lease |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 (WA), s 18(2), s 19(3), s 42(3)(c), s 42(4) |
Case References: | Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Aldin v Latimer Clark, Muirhead & Co [1894] 2 Ch 437 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Birmingham, Dudley & District Banking Co v Ross (1888) 38 Ch D 295 British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577 Browne v Flower [1911] 1 Ch 219 Carpet Fashion Pty Ltd v Forma Holdings Pty Ltd [2003] NSWSC 460 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 285 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 Myers v Catterson (1889) 43 Ch D 470 Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127 Shilkin v Homestead Furniture Nominees Pty Ltd [2011] WADC 7 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Trego v Hunt [1896] AC 7 Wilcox v Richardson (1997) 43 NSWLR 4 World Best Holdings Ltd v Sarker [2010] NSWCA 24 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHILKIN -v- TAYLOR [2011] WASCA 255 CORAM : PULLIN JA
- BUSS JA
NEWNES JA
- Appellant
AND
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CaseChat Overview and Summary
The case of Shilkin v Taylor involved the appellant, Shilkin, who sought to set aside a default judgment entered against them in the Magistrates Court of Western Australia. The judgment arose from a dispute over the payment of rental arrears under a commercial lease. The first respondents, Taylor, were the lessors who sought the default judgment due to the appellant's failure to pay the rental. The legal issues before the court included whether the appellant's defence had a reasonable prospect of succeeding and whether new evidence could be admitted on appeal. The court had to consider the statutory provisions of the Magistrates Court (Civil Proceedings) Act 2004 (WA), particularly sections 18(2), 19(3), 42(3)(c), and 42(4), to determine the admissibility of new evidence and the principles applicable to setting aside a default judgment.
The court meticulously reviewed the appellant's defence, which centred on the argument that the first respondents were not entitled to enforce the default because the appellant's inability to pay the rental was due to the first respondents' alleged conduct. The appellant claimed that the first respondents had lured nearby businesses to relocate, resulting in a loss of custom and an inability to meet the rental payments. However, the court found that there was no evidence to support the appellant's claims regarding the first respondents' conduct, and the appellant did not allege any wrongful act by the first respondents. Additionally, the court noted that there was no derogation from the grant of lease. The court applied the principles under the relevant statutory provisions and concluded that the appellant's defence did not have a reasonable prospect of succeeding.
In reaching its decision, the court held that the appellant's appeal was without merit. The court found that the appellant's defence did not provide a reasonable prospect of success, and therefore, the default judgment should stand. The court also ruled that the new evidence presented by the appellant on appeal was not admissible under the relevant statutory provisions. Consequently, the appeal was dismissed, and the default judgment against the appellant remained in place. The court's decision underscored the importance of the principles governing the admission of new evidence on appeal and the stringent criteria for setting aside a default judgment.
The court meticulously reviewed the appellant's defence, which centred on the argument that the first respondents were not entitled to enforce the default because the appellant's inability to pay the rental was due to the first respondents' alleged conduct. The appellant claimed that the first respondents had lured nearby businesses to relocate, resulting in a loss of custom and an inability to meet the rental payments. However, the court found that there was no evidence to support the appellant's claims regarding the first respondents' conduct, and the appellant did not allege any wrongful act by the first respondents. Additionally, the court noted that there was no derogation from the grant of lease. The court applied the principles under the relevant statutory provisions and concluded that the appellant's defence did not have a reasonable prospect of succeeding.
In reaching its decision, the court held that the appellant's appeal was without merit. The court found that the appellant's defence did not provide a reasonable prospect of success, and therefore, the default judgment should stand. The court also ruled that the new evidence presented by the appellant on appeal was not admissible under the relevant statutory provisions. Consequently, the appeal was dismissed, and the default judgment against the appellant remained in place. The court's decision underscored the importance of the principles governing the admission of new evidence on appeal and the stringent criteria for setting aside a default judgment.
Orders
Orders of the court
Appeal dismissed
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
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