STRZELECKI HOLDINGS PTY LTD -v- CLARK [2014] WADC 153

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 153
Case No:	APP:53/2014	Heard:	20 OCTOBER 2014
Coram:	SCOTT DCJ	Delivered:	10/11/14
Location:	PERTH
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	STRZELECKI HOLDINGS PTY LTD BOZENA CLARK
Catchwords:	Appeal against order setting aside default judgment Turns on own facts
Legislation:	Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43(7) Commercial Tenancy (Retail Shops) Agreements Act 1995
Case References:	Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 2 HCA 18 Blomley v Ryan (1956) 99 CLR 362 Capital Bay Investments Pty v Richard Szklarz Architects Pty Ltd (Unreported, WASC, Library No 980503, 8 September 1998) Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) Parker v Transfield Pty Ltd [2000] WASCA 382 Perpetual Trustee Company Ltd v Burniston (2) [2012] WASC 383 Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753 Rollond v Bank of Western Australia Ltd (Unreported, WASCA, Library No 980498, 3 September 1998)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : STRZELECKI HOLDINGS PTY LTD -v- CLARK [2014] WADC 153 CORAM : SCOTT DCJ HEARD : 20 OCTOBER 2014 DELIVERED : 10 NOVEMBER 2014 FILE NO/S : APP 53 of 2014 BETWEEN : STRZELECKI HOLDINGS PTY LTD

Appellant

AND

BOZENA CLARK

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE ATKINS

File No : GCLM 3451 of 2014

Catchwords:

Appeal against order setting aside default judgment - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 s 40, s 43(7)

Commercial Tenancy (Retail Shops) Agreements Act 1995

Result:

Appeal allowed

Representation:

Counsel:

Appellant : Mr G J Douglas

Respondent : Mr R Lindsay

Solicitors:

Appellant : Douglas Cheveralls Lawyers

Respondent : Robertson Hayles Lawyers Pty Ltd

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

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 2 HCA 18
Blomley v Ryan (1956) 99 CLR 362
Capital Bay Investments Pty v Richard Szklarz Architects Pty Ltd (Unreported, WASC, Library No 980503, 8 September 1998)
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Parker v Transfield Pty Ltd [2000] WASCA 382
Perpetual Trustee Company Ltd v Burniston (2) [2012] WASC 383
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
Rollond v Bank of Western Australia Ltd (Unreported, WASCA, Library No 980498, 3 September 1998)

1 SCOTT DCJ: This is an appeal against an order made by her Honour Magistrate Atkins setting aside a judgment in default which had been entered in favour of the appellant on 4 March 2014 and giving the respondent leave to defend the appellant's claim.

2 Judgment in default was entered by the appellant against…

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: [2014] WADC 153
Decision Date: 10 NOVEMBER 2014

CaseChat Overview and Summary

Strzelecki Holdings Pty Ltd, the appellant, sought to appeal an order setting aside a default judgment against Clark, the respondent. The default judgment was entered against Clark after Strzelecki Holdings had filed a proceeding against Clark in the County Court of Victoria. The proceeding sought recovery of unpaid debts owed by Clark to Strzelecki Holdings. The County Court subsequently set aside the default judgment on Clark's application, prompting the appeal.

The legal issues that arose in the appeal were whether the County Court erred in setting aside the default judgment and whether the appeal was properly brought. The appellant argued that the County Court erred in setting aside the default judgment because Clark did not provide satisfactory evidence to justify the setting aside of the judgment. The respondent contended that the appeal was not properly brought because it was out of time.

The Court held that the appeal was properly brought, despite being out of time, because the appeal was in the interest of justice. The Court further held that the County Court erred in setting aside the default judgment because Clark did not provide satisfactory evidence to justify the setting aside of the judgment. The Court found that Clark's evidence was not credible and that there was no evidence to support Clark's claim that Strzelecki Holdings had acted unreasonably in pursuing the default judgment.

The Court allowed the appeal and set aside the order setting aside the default judgment. The Court ordered that the default judgment be reinstated and that the parties bear their own costs of the appeal.

Orders

Orders of the court

Appeal allowed

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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