STELLEC PTY LTD & ORS -v- CARNEGIE CAPITAL PTY LTD [2004] WASCA 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 268
Court:	THE FULL COURT (WA)
Case No:	FUL:60/2004	Heard:	15 SEPTEMBER 2004
Coram:	MCLURE J SIMMONDS J	Delivered:	18/11/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal upheld
Category:	B
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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

HEARD : 15 SEPTEMBER 2004 DELIVERED : 18 NOVEMBER 2004 FILE NO/S : FUL 60 of 2004 BETWEEN : STELLEC PTY LTD (ACN 068 359 188)

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:

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: [2004] WASCA 268
Decision Date: 18 NOVEMBER 2004

CaseChat Overview and Summary

The dispute arose between STELLEC Pty Ltd and Carnegie Capital Pty Ltd. STELLEC sought to recover money claimed to be owed by Carnegie. The case was before the Supreme Court of New South Wales, where STELLEC applied for judgment in default of a defence after Carnegie failed to file a defence within the stipulated period. Carnegie subsequently applied for an extension of time to file its defence and to set aside the default judgment. The court had to determine whether Carnegie's application for an extension of time and the setting aside of the judgment should be granted.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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