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Singh v Singh

Singh v Singh

Case [2006] WASC 182 24 August 2006

Jurisdiction

Forum Non Conveniens

Setting Aside Judgment

Irremediable Injustice

Civil Litigation & Procedure

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SINGH -v- SINGH [2006] WASC 182

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 182
Case No:	CIV:1677/2004	Heard:	15 JUNE 2006
Coram:	SIMMONDS J	Delivered:	24/08/06
No of pages:	33	Judgment Part:	1 of 1
Result:	Judgment and consequential orders set aside
Category:	B
PDF Version

Parties:	SARDUL SINGH MAN MAHAN SINGH
Catchwords:	Setting aside judgment in default of appearance Standard applied where there has been gross negligence Jurisdiction in cases including foreign immoveables Whether setting aside would work irremediable injustice
Legislation:	Bankruptcy Act 1966 (Cth), s 58(3)(b), s 60 Rules of the Supreme Court 1971 (WA), O 8 r 5, O 34 r 3 Trusts (Hague Convention) Act 1991 (Cth), Sch, Article 7
Case References:	Brygel v Stoneham & Anor, unreported; SCt of Vic (Batt J); Library No BC9701264; 4 April 1997 Couzens v Negri [1981] VR 824 Deschamps v Miller [1908] 1 Ch 856 Magnate Projects Pty Ltd v Youma Constructions (No2) Pty Ltd [2005] NSWCA 331 Re Doyle (dec'd); Ex parte Brien v Doyle (1993) 112 ALR 653 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR(NSW) 23 Yii Chee Ming v Teo Ah Khing & Teo Cho Teck & Anor [2005] 5 MLJ 354 Atkinson v Atlas Investments Limited [2004] NSWSC 63 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 British South Africa Co v Companhia de Mocambique [1893] AC 602 Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40 Heuston v Barber (1990) 19 NSWLR 354 Kostokanellis v Allen [1974] VR 596 McEntee v Connor (1994) 4 Tas R 18 Mickelberg v Network 10 (Perth) Pty Ltd [2001] WASC 75 Nudd v Taylor [2000] QSC 344 Parham v McGill [1998] WASCA 375 Parker v Tranfield [2001] WASCA 233 Piscioner v Smith [2002] WASC 202 Voth v Manildra Flour Mills (1970) 171 CLR 538

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SINGH -v- SINGH [2006] WASC 182 CORAM : SIMMONDS J HEARD : 15 JUNE 2006 DELIVERED : 24 AUGUST 2006 FILE NO/S : CIV 1677 of 2004 BETWEEN : SARDUL SINGH

Plaintiff

AND

MAN MAHAN SINGH

Defendant

Catchwords:

Setting aside judgment in default of appearance - Standard applied where there has been gross negligence - Jurisdiction in cases including foreign immoveables - Whether setting aside would work irremediable injustice

Legislation:

Bankruptcy Act 1966 (Cth), s 58(3)(b), s 60

Rules of the Supreme Court 1971 (WA), O 8 r 5, O 34 r 3
Trusts (Hague Convention) Act 1991 (Cth), Sch, Article 7

Result:

Judgment and consequential orders set aside

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr E Carlose

Defendant : In person

Solicitors:

Plaintiff : Eapon Carlose

Defendant : In person

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

Brygel v Stoneham & Anor, unreported; SCt of Vic (Batt J); Library No BC9701264; 4 April 1997
Couzens v Negri [1981] VR 824
Deschamps v Miller [1908] 1 Ch 856
Magnate Projects Pty Ltd v Youma Constructions (No2) Pty Ltd [2005] NSWCA 331
Re Doyle…

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.

Continue reading Singh v Singh

Details

AGLC: Singh v Singh [2006] WASC 182
Case: [2006] WASC 182
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Singh v Singh [2006] WASC 182 was heard and determined by Simmonds J. The plaintiff, Sardul Singh, sought relief in respect of an alleged trust of land in Malaysia, claiming that the defendant, Man Mahan Singh, held the property on trust for him. The defendant did not appear at the trial, resulting in a judgment being given in default of appearance. The defendant subsequently applied to set aside the judgment. The court was required to decide whether the defendant's application should be granted and whether setting aside the judgment would result in irremediable injustice to the plaintiff. The court found that the defendant had adequately explained his absence from the trial, which was due to his gross negligence, and that a reasonably clear case had been put to the court regarding the defences of lack of jurisdiction and forum non conveniens. Additionally, the court found that setting aside the judgment would not result in irremediable injustice to the plaintiff. As a result, the court set aside the judgment and ordered a new trial, with fresh directions to be made by the parties. The plaintiff's unsuccessful application for leave to make further submissions was also addressed, and the possibility of mediation was raised.

Orders