Sportingbet Australia Pty Ltd v Turco - [2009] NTMC 57

CITATION: SPORTINGBET AUSTRALIA PTY LTD v TURCO [2009] NTMC 057

PARTIES: SPORTINGBET AUSTRALIA PTY LTD

v

MARIO TURCO

TITLE OF COURT: LOCAL COURT

JURISDICTION: LOCAL COURT

FILE NO(s): 20915307

DELIVERED ON: 20 NOVEMBER 2009

DELIVERED AT: DARWIN

HEARING DATE(s): 7 OCTOBER 2009

JUDGMENT OF: ACTING JUDICIAL REGISTRAR SMYTH

CATCHWORDS:

COSTS – costs of an application to set aside default judgment regularly entered – consideration which apply

Local Court Rules, Rule 11.01(a), 32.02(e), 38. 02, 38.03
Supreme Court Rules, Order 63.18

TTE Pty Ltd v Ken Day Pty Ltd (1990) 2 NTLR 143
Otter Gold NL v Barcon (NT) Pty Ltd (2000) 10 NTLR 189
Federal Bank v Bate (1889) 5 WN (NSW) 67
Proudfoot v O’Brien (1896) 13 WN (NSW) 64
In Re Zagoridis & Anor; EP Q’Plas Group Pty Ltd (1990) 98 ALR 718
Heller Financial Services Ltd v Solczaniuk (1989) 99 FLR 304
Permanent Custodians Ltd v El Ali [2008] NSWSC 1391

REPRESENTATION:

Counsel:
Plaintiff: Mr Baker
Defendant: Mr O’Donnell

Solicitors:
Plaintiff: Ward Keller
Defendant: Halfpennys

Judgment category classification: C
Judgment ID number: [2009] NTMC 057
Number of paragraphs: 9

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20915307

BETWEEN:

SPORTINGBET AUSTRALIA PTY LTD
Plaintiff

AND:

MARIO TURCO
Defendant

REASONS FOR JUDGMENT

(Delivered 20 November 2009)

Mr SMYTH, ACTING JUDICIAL REGISTRAR:
1. This is the defendant’s interlocutory application seeking an order setting aside default judgment which was regularly entered against him on 6 August 2009. On the hearing of the application the parties consented to an order setting the default judgment aside. The only remaining issue was that of costs. The plaintiff sought costs of the default judgment and the interlocutory application. The defendant sought costs in the cause. On the conclusion of the application I reserved my decision on the issue of costs.
2. The factual background to the application is as follows:
(a) Proceedings were commenced on 29 April 2009 by statement of claim seeking payment of a debt amounting to $29 599.37 plus costs. The address for service of the defendant was 1/69 Quay Street Fremantle WA 6160. Attached to the statement of claim were the prescribed blank forms, for defence and counterclaim, including instructions for filling out a defence and or counterclaim. Also included in such information was a statement referring a party who did not understand the notices to the Registrar of the Court, a legal practitioner or legal aid.
(b) The statement of claim was served personally on the defendant on 23 May 2009.
(c) A document headed “Notice of Defence” dated 24 June 2009 was filed on 26 June 2009. That document states “The Defendant’s defence is as follows: - ” and then is blank. The document then contains a counterclaim, in a separate titled section, which alleges the plaintiff’s employee breached a betting agreement between the parties, and addresses a number of particulars in relation to that employee. The counterclaim makes no specific response to the plaintiff’s statement of claim or answers the specific matters…

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.

Keep reading for free

Create a free CaseChat account to read Sportingbet Australia Pty Ltd v Turco and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NTMC 57
Decision Date: 20 NOVEMBER 2009

CaseChat Overview and Summary

Sportingbet Australia Pty Ltd initiated legal proceedings against Mario Turco in the Local Court, seeking payment of a debt amounting to $29,599.37 plus associated costs. Turco filed a defence and counterclaim, but his defence was incomplete and did not address the plaintiff’s claims. Consequently, a default judgment was entered against Turco on 6 August 2009. Turco subsequently filed an application to set aside the default judgment, which was consented to by the plaintiff. However, the issue of costs remained unresolved.

The court had to determine the appropriate allocation of costs related to the application to set aside the default judgment, the default judgment itself, and the conciliation conference. The court considered Local Court Rules and relevant case law, which indicated that costs for interlocutory applications are generally borne by the parties themselves unless the court orders otherwise. The court also noted that in applications to set aside default judgments, costs are typically awarded to the party seeking to set aside the judgment.

The court exercised its discretion in determining the costs, taking into account the exceptional nature of such applications and the fact that the parties had consented to setting aside the default judgment. The court found that the plaintiff was entitled to its costs, which were considered "thrown away" due to the defendant’s failure to properly respond to the claim and the subsequent application to set aside the judgment. The court ordered that Turco pay the plaintiff’s costs associated with the application for default judgment, the application to set aside the default judgment, and attendance at the conciliation conference. The costs were to be fixed at 80% of the Supreme Court scale and would be agreed upon or taxed in default of agreement at the conclusion of the proceeding.

The final orders required Turco to pay the plaintiff’s costs related to the application for default judgment, the application to set aside the default judgment, and attendance at the conciliation conference. The costs were to be fixed at 80% of the Supreme Court scale and would be agreed upon or taxed in default of agreement.

Orders