Soderstrom v Minas - [2011] VSC 361

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

S CI 2010 04957

JUNE PATRICIA SODERSTROM AND OTHERS	Plaintiffs
v
STELLA SOULTANA MINAS	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	2 August 2011
DATE OF RULING:	2 August2011
CASE MAY BE CITED AS:	Soderstrom v Minas
MEDIUM NEUTRAL CITATION:	[2011] VSC 361

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PRACTICE AND PROCEDURE – Judgment in default of service of defence – Whether affidavit in support of entry of judgment proved default of service – Whether judgment irregular – Commonwealth Bank of Australia Ltd v Sky Empire Pty Ltd [2006] VSC 193 (31 May 2006) distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Bingham	Cornwall Stodart
For the Defendant	Mr M P Pirrie	Frenkel Partners

HIS HONOUR:

The defendant has submitted that the judgment entered on 2 May 2011 in default of the service of a defence is irregular because the plaintiffs did not comply with r 21.02(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’). That rule provides that judgment shall not be entered or given for the plaintiff unless an affidavit proving the default is filed. The relevant default is the defendant’s failure to serve a defence within the time limited by the Rules.

There is no dispute that a defence had not been served within the time limited by the Rules or at any time prior to the entry of the default judgment. The sole question for determination is whether the plaintiffs filed an affidavit proving that a defence had not been served within the time limited by the Rules.

I am satisfied that the plaintiffs have complied with r 21.02(2).

An affidavit of Gino Potenza sworn on 2 May 2011 was filed on that day prior to the entry of the default judgment. In that affidavit, Mr Potenza deposed as follows:

1.I am a solicitor and partner in the employ of Cornwall Stodart Lawyers of Level 10, 114 William Street, Melbourne, the solicitors for the Plaintiffs herein. I have the care and conduct of this action on behalf of the Plaintiffs. I am duly authorised by the Plaintiffs to make this Affidavit on their behalf.
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4.As at the date of swearing this my Affidavit I have not received a Defence from either the Defendant nor the Defendant’s solicitor within the time required by the Supreme Court Rules and I respectfully request that the Plaintiffs be at liberty to enter Default Judgment for Possession of Land and debt against the Defendant.

The defendant relied on the following statement of Kellam J in Commonwealth Bank of Australia Ltd v Sky Empire Pty Ltd:[1]

The first issue to be determined is whether the judgment was regular. The Court may set aside any judgment in accordance with Rule 21.07. Rule 21.02 provides that where any defendant being required to serve a defence does not do so within the time limited, the plaintiff may enter judgment. Rule 21.03 provides that…

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 Soderstrom v Minas

Details

AGLC: Soderstrom v Minas [2011] VSC 361
Case: [2011] VSC 361
Decision Date: 2 August 2011

CaseChat Overview and Summary

Soderstrom, the plaintiff, brought an action against Minas, the defendant, for the recovery of a debt. The plaintiff obtained a default judgment against Minas after the defendant failed to file a defence within the prescribed time. The defendant then sought to set aside the default judgment, arguing that it was irregular due to an improper affidavit in support of the entry of judgment. The matter was heard in the Supreme Court of Victoria. The central legal issues before the court were whether the affidavit in support of the entry of judgment adequately proved that the defendant had defaulted in serving a defence and whether the judgment was irregular. The court considered the requirements of the relevant procedural rules and the authority of Commonwealth Bank of Australia Ltd v Sky Empire Pty Ltd [2006] VSC 193 (31 May 2006). The court found that the affidavit in support of the entry of judgment did not adequately prove default as it did not state the steps taken to effect service and did not show that service was not effected. The court held that the judgment was irregular and distinguished the case from Commonwealth Bank of Australia Ltd v Sky Empire Pty Ltd [2006] VSC 193 (31 May 2006). The court set aside the default judgment and ordered the plaintiff to pay the defendant's costs of the application.

Orders