Thorp v CIUPRYK - [2002] WADC 136

THORP -v- CIUPRYK [2002] WADC 136

Last Update: 16/07/2002

THORP -v- CIUPRYK [2002] WADC 136
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 136
Case No:	CIV:2901/1999	Heard:	8, 9, 24 MAY 2002
Coram:	MACKNAY DCJ	Delivered:	08/07/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	10	Judgment Part:	1 of 1
Result:	Application allowed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DOUGLAS HENRY ALBERT THORP STEVEN DALE CIUPRYK
Catchwords:	Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Practice under the District Court Rules Application to set aside default judgment Form of judgment entered pursuant to springing order Whether judgment effective Failure of defendant to provide discovery Issue of case management summons in relation to discovery after springing order served Whether defendant misled Whether springing order ought be amended
Legislation:	Rules of the Supreme Court 1971 Rules of the District Court District Court of Western Australia Act 1969 s 87(1)
Case References:	ACN 076 676 438 Pty Ltd (In Liq) & Anor v A-Comms Teledata Pty Ltd & Anor [2000] WASC 214 Norman v Norman (1992) 6 WAR 372 Bowen v Stott [2001] WASC 219 Eng Mee Yong v Letchumanan [1980] AC 331 Evans v Bartlam [1937] AC 473 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Ianello v Bottoli (1998) 19 SR (WA 27 Kearnan v Saudi Livestock Transport & Trading Co (1987) 4 SR (WA) Kostokanellis v Allen [1974] VR 596 Palmer v Prince [1980] WAR 61 Payton & Anor v Harvard Nominees Pty Ltd, unreported; SCt of WA; Library No 930132; 12 March 1993 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Rolland & Anor v Bank of Western Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : THORP -v- CIUPRYK [2002] WADC 136 CORAM : MACKNAY DCJ HEARD : 8, 9, 24 MAY 2002 DELIVERED : 8 JULY 2002 FILE NO/S : CIV 2901 of 1999 BETWEEN : DOUGLAS HENRY ALBERT THORP

Applicant (Defendant)

AND

STEVEN DALE CIUPRYK

Respondent (Plaintiff)

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Practice under the District Court Rules - Application to set aside default judgment - Form of judgment entered pursuant to springing order - Whether judgment effective - Failure of defendant to provide discovery - Issue of case management summons in relation to discovery after springing order served - Whether defendant misled - Whether springing order ought be amended

Legislation:

Rules of the Supreme Court 1971
Rules of the District Court
District Court of Western Australia Act 1969 s 87(1)

(Page 2)

Result:

Application allowed

Representation:

Counsel:

Applicant (Defendant) : Mr W J Chesnutt

Respondent (Plaintiff) : Mr T M Hobday

Solicitors:

Applicant (Defendant) : Ian Tait & Co

Respondent (Plaintiff) : Lewis Blyth & Hooper

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

ACN 076…

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.

Continue reading Thorp v CIUPRYK

Details

AGLC: THORP v CIUPRYK [2002] WADC 136
Case: [2002] WADC 136
Decision Date: 8 JULY 2002

CaseChat Overview and Summary

The case of Thorp v Ciupryk involved a dispute in the Supreme Court of Western Australia, concerning an application to set aside a default judgment. The plaintiff, Thorp, sought to set aside a default judgment entered against him by the defendant, Ciupryk, under a springing order. The primary issue was whether the form of judgment entered pursuant to the springing order was effective and whether the defendant had misled the court by not providing the necessary discovery. Further, the court had to determine if a case management summons in relation to discovery should be issued after the springing order was served.

The court examined the procedural context and the nature of the springing order, which allowed for the entry of judgment if the defendant failed to provide the required discovery. The key legal issue was whether the defendant's failure to provide discovery and the subsequent entry of judgment constituted a valid judgment. Additionally, the court assessed whether the defendant had acted in a manner that could be considered misleading to the court, particularly regarding the timing of the springing order and the discovery process. The court also deliberated on whether the springing order should be amended to address any perceived procedural deficiencies.

Upon reviewing the evidence and arguments presented, the court concluded that the form of judgment entered was not effective due to procedural irregularities. The court found that the defendant had not misled the court but had acted in a manner that warranted reconsideration of the procedural steps taken. Consequently, the court allowed the application to set aside the default judgment and ordered that the springing order be amended to ensure clarity and procedural fairness. The final orders included setting aside the default judgment and directing the parties to follow the amended procedural steps as outlined by the court.

Orders

Orders of the court

Application 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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