Stragan & Co Pty Ltd v Christodolou - [2002] VSC 78

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8868 of 2001

STRAGAN AND CO. PTY. LTD.	Plaintiff
v.
JOHN CHRISTODOLOU AND OTHERS	Defendants

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 MARCH 2002
DATE OF JUDGMENT:	26 MARCH 2002
CASE MAY BE CITED AS:	STRAGAN & CO. PTY. LTD. v. CHRISTODOLOU & ORS.
MEDIUM NEUTRAL CITATION:	[2002] VSC 78

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CATCHWORDS: Judgments and Orders – Magistrates' Court – Default judgment – Second application to set aside judgment – Abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Riordan	Dellios West & Co.
For the First Defendant	Mr. M. Sifris	Herman Partners

HIS HONOUR:

This is the return of an originating motion filed in the Court by the plaintiff Stragan & Co. Pty. Ltd. whereby the plaintiff seeks relief in the nature of certiorari being an order that the order made by the Heidelberg Magistrates' Court sitting at Melbourne on 22 October 2001 setting aside the order of the Heidelberg Magistrates' Court made on 3 December 1999 be set aside.

The background to the application may be summarised as follows.

On 6 October 1999 the plaintiff filed a complaint in the Heidelberg Magistrates' Court whereby it sought to recover certain outstanding accounting fees from the defendants John Christodolou (the first defendant) and Nick Christodolou and Georgina Christodolou (the second defendants).

On the face of the complaint adjacent to the words "Nature of Complaint" appear the words "Payment of Professional Service Fees". On the face of the complaint adjacent to the words "Amount of Claim" appears the figure $40,000 that being the limit of the civil jurisdiction of the Magistrates' Court.

By its particulars of claim the plaintiff claims that between 14 December 1994 and 13 May 1999 it rendered invoices to the second defendants in respect of accounting work carried out on their behalf totalling $42,186.40 and in respect of which it had only received a payment of $4,536.40 leaving a balance of $36,650 outstanding. By its complaint it sought to recover that sum together with interest totalling $15,745.17 from the second defendants. However, it is clear from the base of the complaint that the plaintiff abandoned that portion of its claim which exceeded $40,000.

The plaintiff's claim against the first defendant is based on a guarantee dated 16 May 1997 given by him to the plaintiff whereby he guaranteed payment of the sum of $32,485 by the second defendants to the plaintiff in respect of accounting services rendered to the second defendants.

None of the defendants gave notice of defence to the plaintiff's claim and on 30 November 1999 the plaintiff lodged an application for judgment against the defendants in the sum of $40,000 together with interest of $741.37 and costs of $868.05.

On 3 December 1999 a default judgment was entered against each defendant in the sum of $40,000 together with interest of $795.29 and costs of $808.

On or about 18 April 2001 the first defendant…

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: [2002] VSC 78
Decision Date: 26 March 2002

CaseChat Overview and Summary

Stragan & Co Pty Ltd sued Christodolou for outstanding debts in the Magistrates' Court of Victoria. The court granted the plaintiff a default judgment due to the defendant's failure to appear. Subsequently, the defendant applied to set aside the judgment, which was dismissed, and the defendant was ordered to pay costs. The defendant then made a second application to set aside the judgment, which the court also dismissed, finding that the application constituted an abuse of process.

The court considered whether the defendant's second application to set aside the default judgment was an abuse of process. The court found that the defendant's previous application to set aside the judgment had been dismissed, and the defendant had not demonstrated any new or compelling reasons for the second application. The court emphasised that repeated applications to set aside a judgment without proper justification could be seen as an abuse of the court's process.

The court concluded that the defendant's second application to set aside the judgment was indeed an abuse of process. The court dismissed the application and ordered the defendant to pay the plaintiff's costs associated with the second application. The court emphasised that the defendant should have raised any new or compelling reasons for setting aside the judgment in the first application, and making a second application without such reasons was an abuse of the court's process.

The court made an order that the second application to set aside the default judgment was dismissed, and the defendant was ordered to pay the plaintiff's costs associated with the second application. The court emphasised the importance of parties not making repeated applications to set aside a judgment without proper justification, as such actions could be seen as an abuse of the court's process.

Orders