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The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd

The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd

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Case Copied 7 November 2007 45 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE PILBARA INFRASTRUCTURE PTY LTD -v- BGC CONTRACTING PTY LTD [2007] WASCA 257

CORAM: PULLIN JA
BUSS JA
NEWNES AJA

HEARD: 7 NOVEMBER 2007

DELIVERED : 7 NOVEMBER 2007

PUBLISHED : 21 NOVEMBER 2007

FILE NO/S: CACV 125 of 2007

BETWEEN: THE PILBARA INFRASTRUCTURE PTY LTD
Appellant
AND
BGC CONTRACTING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :BGC CONTRACTING PTY LTD -v- THE PILBARA INFRASTRUCTURE PTY LTD [2007] WASC 200
File No  :CIV 1783 of 2007

Catchwords:

Practice and procedure - Memorandum of appearance filed with wrong action number indorsed - Default judgment entered - Application to set aside default judgment refused - Whether appearance was a nullity or an irregularity - Whether order should have been made under O 2 r 1(2) to deal with the irregularity

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1

Result:

Application to adduce additional evidence granted
Leave to appeal granted
Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr C L Zelestis QC & Mr M Van Brakel
Respondent: Mr C G Colvin SC & Mr D J Marsh

Solicitors:

Appellant: Clayton Utz
Respondent: Hotchkin Hanly

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

ACN 076 676 438 Pty Ltd (In Liq) v A‑Comms Teledata Pty Ltd [2000] WASC 214
ANZ Banking Group Ltd v Kostovski (Unreported; SCt of Vic; 5511/97; 2 July 1997)
Bates v Queensland Newspapers Pty Ltd [2001] QSC 083
BGC Contracting Pty Ltd v The Pilbara Infrastructure Pty Ltd [2007] WASC 200
Bill Discount Services Pty Ltd (In liq) v Dill‑Macky (Unreported; WASC; Library No 6700; 7 May 1987)
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Hall v Hall [2007] WASC 198
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Kanyilmaz v Nominal Defendant (Qld) [2000] QSC 180
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Parker v Transfield Pty Ltd [2000] WASCA 382
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444
Pontin v Wood [1962] 1 QB 594
Re Zagoridis; Ex parte Q'Plas Group Pty Ltd (1990) 27 FCR 108
Rollond & Anor v Bank of Western Australia Ltd (Unreported; WASCA; Library No 980498; 3 September 1998)
Silverstone Holdings Pty Ltd v American Home Assurance Co (1997) 18 WAR 516

JUDGMENT OF THE COURT: This appeal and an accompanying application for leave to appeal concerned the judgment of Templeman J whereby he dismissed the appellant's (TPI's) application to set aside default judgment which had been entered against TPI by the respondent (BGC) in default of appearance.

Summary

BGC carried out work for TPI and claimed a large sum of money under the contract between them. TPI disputed the claim. BGC issued a writ. TPI's solicitors told BGC's…

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: [2007] WASCA 257
Decision Date: 7 NOVEMBER 2007

CaseChat Overview and Summary

The Pilbara Infrastructure Pty Ltd (TPI) appealed against a decision of Templeman J which dismissed TPI's application to set aside a default judgment entered against TPI by BGC Contracting Pty Ltd (BGC). BGC had carried out work for TPI and claimed a large sum of money under a contract between them. TPI disputed the claim and BGC issued a writ. TPI's solicitors told BGC's solicitors on the last day for entering an appearance that TPI would enter an appearance. TPI's solicitors sent by facsimile a copy of the memorandum of appearance they intended filing the next morning. BGC's solicitors said they would enter judgment in default of appearance if they could get to the court first. TPI's solicitor reached the court first the next morning and filed the memorandum of appearance which the court stamped with its certificate, indicating that an appearance had been entered. However, by mistake, TPI's solicitors had put the wrong action number on the top right-hand corner; '1395' instead of '1783'. An hour later, BGC's solicitors went to the court and filed judgment in default of appearance which was sealed as a judgment of the court. TPI immediately applied to set aside the default judgment. The learned judge refused to do so. TPI appealed.

The legal issue before the court was whether the appearance was a nullity or an irregularity and whether the order should have been made under O 2 r 1(2) to deal with the irregularity. The court found that the appearance was an irregularity and not a nullity. The court also found that the order should have been made under O 2 r 1(2) to deal with the irregularity. The court held that the appearance was valid because it was in the correct form and was filed before BGC's solicitors entered judgment in default of appearance. However, the court also held that the appearance was an irregularity because the wrong action number was put on the top right-hand corner. The court held that the irregularity could be cured under O 2 r 1(2) and that the order should have been made to cure the irregularity. The court held that the appeal should be upheld and that the default judgment should be set aside. The court also held that the order should be made to cure the irregularity in the memorandum of appearance.

Orders

Orders of the court

Application to adduce additional evidence granted

Leave to appeal granted

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This appeal and an accompanying application for leave to appeal concerned the judgment of Templeman J whereby he dismissed the appellant's (TPI's) application to set aside default judgment which had been entered against TPI by the respondent (BGC) in default of appearance. BGC carried out work for TPI and claimed a large sum of money under the contract between them. TPI disputed the claim. BGC issued a writ. TPI's solicitors told BGC's solicitors, on the last day for entering an appearance, that TPI would enter an appearance. TPI's solicitors sent by facsimile a copy of the memorandum of appearance they intended filing the next morning. BGC's solicitors said they would enter judgment in default of appearance if they could get to the court first. TPI's solicitor reached the court first the next morning and filed the memorandum of appearance which the court stamped with its certificate, indicating that an appearance had been entered. The memorandum of appearance was in the correct form but by mistake, TPI's solicitors had put the wrong action number on the top right‑hand corner; '1395' instead of '1783'. An hour later, BGC's solicitors went to the court and filed judgment in default of appearance which was sealed as a judgment of the court. TPI immediately applied to set aside the default judgment. The learned judge refused to do so. TPI appealed. On 7 November 2007, at the conclusion of the hearing, this court upheld the appeal and inter alia set aside the learned judge's orders and the default judgment and made an order pursuant to O 2 r 1(2), curing the irregularity in the memorandum of appearance. The court said that reasons would follow. These are the reasons for making the orders. BGC entered into an agreement with TPI in July 2006 (TPI Agreement). Under the TPI Agreement, BGC was obliged to construct, supply and install rail earthworks for a railway line from a mine site in the Pilbara to Port Hedland. Pursuant to the TPI Agreement, BGC was entitled to be paid by TPI for the 'Direct Costs' incurred by BGC as provided for under the agreement and in sch 4 in particular. In addition, BGC was entitled to a fee which could range from 4% to 14% of direct costs as provided for in sch 5 and sch 6. The fee would vary depending upon whether or not there was a cost overrun or a cost saving. There was a subsequent Deed of Security, whereby TPI was to pay the estimated amount of future progress payments into a solicitor's trust account. Four clauses in sch 5 read as follows:Amount of FeeS5.2Subject to S5.3, the Fee will be fourteen per cent (14.0%) of the Direct Costs (excluding TPI direct costs) as reported by BGC's J D Edwards cost reporting system, and will be paid progressively to BGC pending calculation of the final Fee in accordance with Schedule 6, as more fully explained in S5.4.S5.3BGC will place at risk a proportion of its Fee up to a limit of 10.0% of Direct Costs, such that the Fee will at no time be less than 4.0%, as detailed in Schedule 6. To avoid doubt, there is no limit on BGC's entitlement to Gainshare.Interim Fee PaymentsS5.4BGC will record the Direct Costs using BGC's J D Edwards cost reporting system. Each month BGC will invoice TPI the Direct Costs so recorded plus 14.0% for BGC's corporate overhead and profit. TPI shall pay to BGC the amount so invoiced within seven (7) days after receipt of each invoice.Determination of FeeS5.5At the times determined by the ALT, TPI and BGC shall determine the Fee in accordance with this Schedule 5 and Schedule 6, and the ALT may resolve that a reconciliation be made between the parties to settle the final amount of the Fee to the date of such reconciliation by means of a payment by one party to the other, as the case may be. In the absence of such resolution and reconciliation, the final amount of the Fee will be determined upon completion of the Works or upon the termination of this Alliance Agreement, whichever is the earlier.

Ratio Decidendi

Legal Principle Established

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