Sonnet Holdings Pty Ltd v Dunn - [2012] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SONNET HOLDINGS PTY LTD -v- DUNN [2012] WADC 11

CORAM: STAVRIANOU DCJ

HEARD: 16 DECEMBER 2011

DELIVERED : 25 JANUARY 2012

FILE NO/S: CIV 2245 of 2009

BETWEEN: SONNET HOLDINGS PTY LTD
Plaintiff
AND
BRIAN MAURICE DUNN
Defendant

Catchwords:

Practice and procedure - Consent order not attested as required by O 42 r 8 - Consent judgment entered - Application to set aside consent judgment - Whether judgment was a nullity or an irregularity - Whether order should be made under O 2 r 1(2) to deal with the irregularity

Legislation:

Rules of the Supreme Court 1971 (WA) O 2 r 1, O 2 r 2, O 42 r 8

Result:

Judgment set aside

Representation:

Counsel:

Plaintiff: Mr T J Palmer
Defendant: Mr K Savas

Solicitors:

Plaintiff: Patti Chong & Co
Defendant: Corser & Corser

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

Bailey v Marinof (1971) 125 CLR 529
Duncan v Lowenthal [1969] VR 180
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1984] 1 WLR 513
Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209
Pilbara Infrastructure v Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
R v S [2009] WASCA 11
The Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37

STAVRIANOU DCJ:

The applications and the result

1.This is an application by the plaintiff, Sonnet Holdings Pty Ltd, for an order for the appointment of a receiver pursuant to s 96(1)(b) of the Civil Judgments Enforcement Act 2004. The appointment is sought in aid of execution of a consent judgment entered on 28 August 2009. There is also an application by the defendant, Brian Maurice Dunn, to set aside the judgment.
2.I have decided the application for appointment of a receiver should be dismissed. The application to set aside the judgment should be granted.

Background to the applications

On 30 July 2009 Sonnet filed the writ of summons. The statement of claim pleads that in the course of his employment by Sonnet Mr Dunn drew 41 cheques on its account in his favour, forged signatures on the cheques and as a result obtained $264,548.58 being the sum claimed.
The writ of summons was served on Mr Dunn in August 2009. Shortly thereafter he telephoned and spoke to Mr Lewis Chiat, the solicitor then acting for Sonnet.
Mr Dunn in an affidavit sworn 20 November 2011 describes the circumstances as follows:
5.During the mentioned telephone call Mr Chiat said words to the effect that I was doing the right thing by calling him and that together could solve the problem of the summons.
6.During the mentioned telephone call I told Mr Chiat that I had a claim against his client and was owed a lot of money, but that I did not want legal proceedings because I was going away to Africa for work and preferred if we came…

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: [2012] WADC 11
Decision Date: 25 JANUARY 2012

CaseChat Overview and Summary

The case of Sonnet Holdings Pty Ltd v Dunn involved a dispute regarding the validity of a consent order entered into by the parties. The respondent, Mr Dunn, applied to set aside the consent judgment on the grounds that it was a nullity or an irregularity due to non-compliance with the rules of court. The primary issue for the court was whether the consent judgment should be set aside under O 2 r 1(2) of the Rules to address the irregularity. Another issue was whether the application was irregular due to the lack of particulars of the grounds of the application.

The court held that there was a serious irregularity in the consent order as it was not attested by a solicitor acting on behalf of Mr Dunn, which is required by O 42 r 8 of the Rules. The court found that the irregularity was significant, especially given the circumstances of the case, including the significant quantum of the claim and the unrepresented status of Mr Dunn. The court also noted that the application to set aside the judgment was irregular in form but allowed it to proceed due to the absence of prejudice to the applicant. Ultimately, the court dismissed the application for the appointment of a receiver and allowed the application to set aside the consent judgment to proceed despite the irregularity in the form of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Order0 42 r 8 reads:8.Entering judgment by consent where defendant has not appeared or is self‑representedWhere the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends before a judge and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, except in cases where the defendant is a barrister, or solicitor. Mr Dunn had not entered an appearance to the writ of summons and had not appeared in person when he signed the consent order. The consent order was signed by Sonnet's solicitors. Mr Dunn's signature was not attested by a solicitor then acting on his behalf. There was non‑compliance with O 42 r 8. In the circumstances before the judgment can be enforced an order is required regularising the irregularity. An irregularity should be rectified so long as it can be done without injustice: Pilbara Infrastructure v Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [52]. The failure to comply with O 42 r 8 is in this case a serious irregularity. There is non‑compliance with the express requirements of the order. The seriousness of the irregularity is further highlighted by the circumstances as outlined by Mr Dunn in his affidavit as to his discussion with Sonnet's then solicitor. The solicitor would clearly have been aware that Mr Dunn was unrepresented. The quantum of the claim was significant. Mr Dunn's evidence was that he wanted to enter into a commercial arrangement with Sonnet and that he told Mr Chiat that he had a claim against his client. It is his evidence he believed he would be able to negotiate a commercial agreement 'after the consent judgment'. It is the case, as Sonnet has submitted, that Mr Dunn has not condescended to particulars of his proposed defence to the action. Two issues have arisen in submissions in relation to Mr Dunn's defence to the action. First, there is reference to a counterclaim. There are no particulars. Secondly, it appears that part of the judgment has been satisfied by BankWest. The circumstances in which the payment was made were not fully identified. Sonnet has also submitted that any hearing pursuant to O 42 r 8 before a judge would have been a mere formality. I do not accept that submission. Mr Dunn made clear in his affidavit that he at the least considered he could negotiate after executing the consent order. That was not the effect of the document he signed. The failure to comply in my view is so serious that the irregularity should not be remedied. The application for the appointment of a receiver accordingly should be dismissed. Mr Dunn's application to set aside judgment was filed on 10 November 2011. In written submissions filed subsequent to the hearing Sonnet submitted the application was irregular in that it failed to state the grounds of the application as required by O 2 r 2(2) of the Rules. I accept the form of the application is irregular. No grounds are expressed as required. However the written submissions make clear that reliance is placed upon O 42 r 8 of the Rules. There is no demonstrated prejudice and I would allow the application to proceed notwithstanding the irregularity.

Ratio Decidendi

Legal Principle Established

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