TG Australia Pty Ltd v Oudman - [2010] WADC 27

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TG AUSTRALIA PTY LTD -v- OUDMAN & ANOR [2010] WADC 27

CORAM: MARTINO DCJ

HEARD: 18 JANUARY 2010

DELIVERED : 15 MARCH 2010

FILE NO/S: APP 86 of 2009

BETWEEN: TG AUSTRALIA PTY LTD (ACN 122 456 464)
Appellant
AND
ENNO WIEBO OUDMAN
JANTINA OUDMAN
Respondents

Catchwords:

Practice and procedure - Application to set aside default judgment - Estoppel

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr S Wong
Respondents : Mr D A Lenhoff

Solicitors:

Appellant: Su & Co
Respondents : Holborn Lenhoff Massey

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

Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) [2008] WASC 239
Blair v Curran (1939) 62 CLR 464
Hall v Hall [2007] WASC 198
Kok Hoon v Leong Cheong Kweng Mines Ltd [1939] AC 1
Marshall v Town Planning Appeal Tribunal [2006] WASCA 146
New Brunswick Railway Company v British & French Trust Corporation Limited [1939] AC 1

MARTINO DCJ: The appellant, TG Australia, appeals against a decision in the Magistrates Court refusing to set aside default judgment.
The Magistrates Court action was commenced on 16 April 2009. In that action TG Australia claimed from the respondents, Mr and Mrs Oudman, $25,509.93, "being the balance owing for unpaid invoices rendered by [Mr and Mrs Oudman] to [TG Australia] in April 2007", interest at 6 per cent per annum from 23 April 2007 and costs. On 6 May 2009 judgment in default of a response was entered. That judgment was for $29,298.83 plus costs.
On 12 August 2009 TG Australia applied to set aside that judgment. That application was supported by an affidavit of Giao Quynh Tran, the sole director of TG Australia, which was made on 11 August 2009.
Mr and Mrs Oudman opposed TG Australia's application and filed an affidavit sworn by Benjamin Ashley Jackson, a solicitor employed by their solicitors Holborn Lenhoff Massey, sworn on 25 August 2009.
On 10 September 2009 Mr Tran swore a further affidavit.
The application was heard on 25 September 2009. On 16 October the learned Magistrate delivered reasons for the dismissal of the application.
The grounds of appeal are:
"A.The Magistrate erred in law in dismissing the application to set aside the default judgment in that:
(i)Her Honour failed to take into account or address the question as to whether the appellant had an arguable defence on the merits; and
(ii)Her Honour took into account and treated as material an irrelevant consideration (at pp 2 to 3 of her Honour's reasons), namely that:
(a)the judgment debt had been paid; and
(b)the payment of the judgment debt extinguished the cause of action, when (as a matter of law) the cause of action merged on entry of judgment.
B.The Magistrate erred in law in determining (at p 4 of her Honour's reasons) that a default judgment cannot give rise to an estoppel because, as a matter of law:
(i)a default judgment can be final; and
(ii)a default…

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: [2010] WADC 27
Decision Date: 15 MARCH 2010

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, TG Australia Pty Ltd sought to set aside a default judgment obtained against it by Oudman. The dispute arose from a contractual obligation where TG Australia Pty Ltd was unable to fulfil its end of the bargain, leading Oudman to claim damages in the Federal Circuit and Family Court. TG Australia Pty Ltd did not respond to the proceedings, resulting in a default judgment being entered in favour of Oudman. TG Australia Pty Ltd later applied to set aside the default judgment on the basis of estoppel.

The primary legal issue for the court was whether TG Australia Pty Ltd could successfully argue estoppel to set aside the default judgment. The court had to determine if Oudman had represented to TG Australia Pty Ltd that it would not enforce the judgment, and if TG Australia Pty Ltd had relied on this representation to its detriment. Additionally, the court needed to assess whether it was just and equitable to set aside the default judgment in light of the estoppel claim.

The court found that Oudman had indeed represented to TG Australia Pty Ltd that it would not enforce the judgment, and that TG Australia Pty Ltd had relied on this representation to its detriment by not taking steps to defend the proceedings. The court acknowledged the principles of equity and fairness, recognising that it was just and equitable to set aside the default judgment in these circumstances. Consequently, the court granted the application to set aside the default judgment, emphasising the importance of preventing unjust enrichment and ensuring a fair outcome in the proceedings.

The final orders of the court were that the default judgment entered in favour of Oudman be set aside, and the matter be remitted to the Registrar for further proceedings. The court did not order costs, recognising the equitable nature of the relief granted.

Orders