Shilkin v Taylor

Case [2011] WASCA 255


SHILKIN -v- TAYLOR [2011] WASCA 255



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 255
THE COURT OF APPEAL (WA)
Case No:CACV:11/201119 OCTOBER 2011
Coram:PULLIN JA
BUSS JA
NEWNES JA
18/11/11
22Judgment Part:1 of 1
Result: Appeal dismissed
B
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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
HEARD : 19 OCTOBER 2011 DELIVERED : 18 NOVEMBER 2011 FILE NO/S : CACV 11 of 2011 BETWEEN : STEVEN ANDREW SHILKIN
    Appellant

    AND

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Shilkin v Taylor [2011] WASCA 255
Case
[2011] WASCA 255
Decision Date

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.

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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