Surdex Steel Pty Ltd v Buck - [1999] VSC 521

SUPREME COURT OF VICTORIA

PRACTICE COURT Do not Send for Reporting

Not Restricted

No. 7672 of 1999

SURDEX STEEL PTY. LTD.	Plaintiff
v.
RAYMOND FRANCIS BUCK AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 DECEMBER 1999
DATE OF JUDGMENT:	2 DECEMBER 1999
CASE MAY BE CITED AS:	SURDEX STEEL PTY. LTD. v. BUCK & ANOR.
MEDIA NEUTRAL CITATION:	[1999] VSC 521

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CATCHWORDS: Practice and procedure – Judgment entered in default of appearance – No acceptable explanation by defendant for delay in making application to set it aside – No arguable defence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M.J. Corrigan	White Cleland Pty.
For the Defendants	J. Paterson	George Schifter Johannson & Co.

HIS HONOUR:

I have before me an application for leave to appeal from an order made by a Master of the County Court on 22 November 1999 whereby the Master ordered that the judgment entered against the defendants, Raymond Francis Buck and Janis Mary Buck, on 19 April 1999 be set aside. I should say the application for leave to appeal is only pursued by the plaintiff against the first-named defendant, Raymond Francis Buck.

The background to the application may be summarized as follows: The plaintiff Surdex Steel Pty Ltd is the supplier of steel products. In August of 1997 the first-named defendant filled out a credit application addressed to the plaintiff in respect of the supply by the plaintiff of steel products to a company called Fitworks Pty Ltd. The credit application signed by the first-named defendant describes the first-named defendant as a director of that company.

The material before me demonstrates that Fitworks was registered on 26 June 1989 but was deregistered on 2 September 1994. According to the historical company extract in relation to Fitworks, the directors of the company at that time were the defendants, Raymond Francis Buck and Janis Mary Buck.

At all events, having submitted the credit application to the plaintiff, between September 1998 and January 1999 the plaintiff supplied to the first-named defendant or Fitworks, steel products to a value of $112,987.28.

The defendant failed to make payment to the plaintiff in respect of that sum and on 24 February 1999 the plaintiff's solicitors wrote the following letter to the defendants demanding payment of the outstanding debt. The letter is addressed to Mr Raymond Buck and Mrs Janis Buck and reads:

"Dear Sir and Madam, Debt Surdex Steel Pty Ltd. We act for Surdex Steel Pty Ltd. We are instructed that in August 1997 you completed a credit application with our client in which you stated you were directors of a company, Fitworks Pty Ltd, which sought a credit facility from our client. Each of you personally guaranteed to our client payment of any debts unpaid by Fitworks Pty Ltd. Our client instructs us that there is currently an outstanding debt of $112,987.28. At one point you purported to pay $28,383.67 of this sum, however, that cheque was dishonoured. Our client instructed…

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: [1999] VSC 521
Decision Date: 2 December 1999

CaseChat Overview and Summary

Surdex Steel Pty Ltd brought an action against Buck in the Federal Circuit Court of Australia, seeking damages for breach of contract. Buck failed to appear or plead, resulting in judgment being entered against him by default. Buck later applied to set aside the default judgment, which was denied by the court. The central legal issues revolved around whether the defendant had a sufficient explanation for his delay in making the application and whether he had an arguable defence. The court examined the defendant's reasons for the delay and assessed whether the proposed defence had any merit. It found that the defendant had provided no acceptable explanation for the delay and that the proposed defence was not arguable. Consequently, the application to set aside the default judgment was dismissed.

The court emphasised that the defendant had to provide a compelling reason for the delay and that the mere assertion of a potential defence was insufficient. The defendant's explanation was deemed inadequate, as it did not address the critical factors leading to the delay. Furthermore, the proposed defence was found to be without substance, lacking evidence or legal basis to support it. The court concluded that the defendant had not met the necessary standard to justify setting aside the default judgment. The outcome underscored the importance of timeliness and the need for a valid defence to warrant reconsideration of a default judgment.

Orders