STELLEC PTY LTD & ORS -v- CARNEGIE CAPITAL PTY LTD [2004] WASCA 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 268 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:60/2004 | 15 SEPTEMBER 2004 | |
| Coram: | MCLURE J SIMMONDS J | 18/11/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal upheld | ||
| B | |||
| PDF Version |
| Parties: | STELLEC PTY LTD (ACN 068 359 188) CLAYTON RAMSAY TRACY RAMSAY CARNEGIE CAPITAL PTY LTD (ACN 079 552 051) |
Catchwords: | Practice and procedure Failure to file defence Application for an extension of time to file defence Application to set aside judgment in default of defence Turns on own facts |
Legislation: | Supreme Court Rules, O 22 r 7(1A) Trade Practices Act 1974 (Cth), s 52, s 75B |
Case References: | Yorke v Lucas (1985) 158 CLR 661 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 Evans v Bartlam [1937] AC 473 Jacob v Booth's Distillery Co (1901) 85 LT 262 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 Parker v Transfield Pty Ltd v Anor [2000] WASCA 382 Rolland & Anor v Bank of Western Australia Ltd, unreported; FCt SCt of WA; Library No 980498A; 3 September 1998 Termijtelen v Van Arkel [1974] 1 NSWLR 525 Webster v Lampard (1993) 177 CLR 598 Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STELLEC PTY LTD & ORS -v- CARNEGIE CAPITAL PTY LTD [2004] WASCA 268 CORAM : MCLURE J
- SIMMONDS J
- First Applicant (Second Defendant)
CLAYTON RAMSAY
TRACY RAMSAY
Second Applicants (Third Defendants)
AND
CARNEGIE CAPITAL PTY LTD (ACN 079 552 051)
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : CARNEGIE CAPITAL PTY LTD -v- INTERSTYLE BUILDING PTY LTD & ORS [2004] WASC 65
File No : CIV 1943 of 2001
(Page 2)
Catchwords:
Practice and procedure - Failure to file defence - Application for an extension of time to file defence - Application to set aside judgment in default of defence - Turns on own facts
Legislation:
Supreme Court Rules, O 22 r 7(1A)
Trade Practices Act 1974 (Cth), s 52, s 75B
Result:
Leave to appeal granted
Appeal upheld
Category: B
Representation:
Counsel:
First Applicant (Second Defendant) : Mr M J Hawkins
Second Applicants (Third Defendants) : Mr M J Hawkins
Respondent (Plaintiff) : Mr M L Bennett
Solicitors:
First Applicant (Second Defendant) : Hammond Worthington
Second Applicants (Third Defendants) : Hammond Worthington
Respondent (Plaintiff) : Bennett & Co
Case(s) referred to in judgment(s):
Yorke v Lucas (1985) 158 CLR 661
(Page 3)
Case(s) also cited:
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- Case
- [2004] WASCA 268
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances that led to Carnegie's failure to file a defence. It considered the adequacy of Carnegie's explanation for the delay, the existence of a prima facie case in favour of STELLEC, and whether Carnegie's application was made without any undue delay or unconscionable behaviour. The court also assessed whether there was a reasonable prospect that the defence had merit and whether justice required the default judgment to be set aside.
The court found that Carnegie had provided a satisfactory explanation for the delay and that there was a reasonable prospect that the defence would be successful. The court held that justice required the default judgment to be set aside and allowed Carnegie's application. The court emphasised that the decision was based on the particular facts of the case and the balance of convenience.
The appeal was allowed, and leave to appeal was granted. The orders of the court below were set aside, and the matter was remitted for further consideration in light of the appeal decision.
Orders
Orders of the court
Leave to appeal granted
Appeal upheld
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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