Tilli v DELMARCO
[2001] WASCA 26
•14 FEBRUARY 2001
TILLI & ANOR -v- DELMARCO & ORS [2001] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 26 | |
| Case No: | FUL:183/2000 | 31 JANUARY 2001 | |
| Coram: | MASTER BREDMEYER | 14/02/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | PETER TILLI JOSEPH TILLI DESMOND LLOYD DELMARCO VALMA DELMARCO BETTY WOOLDRIDGE BOORN INVESTMENTS PTY LTD BRIAN FRANCIS O'CONNOR MARGARET ANNE O'CONNOR LYNX NOMINEES PTY LTD SYDNEY JAMES GODDARD MARIE ADOLPHA ANDERSON AUDREY ALMA VAN HATTEM LEONARD ERNEST BLACKMORE NORMA ISABEL BLACKMORE IAN GEORGE GREEN STREAMLINE PLUMBING PTY LTD RONALD BLAKELEY ELAINE JUNE BLAKELEY MAVIS JOAN GAMBLE PETER AYCKBOURN MAVIS ELDER RUBY HIGGINS LEONARD GEARY JOAN MEREDYTH GEARY EDITH ANNE KILMASTER ATHOL CROSS PTY LTD JAMES MATTHEW FLAHERTY MINENCO HOLDINGS PTY LTD |
Catchwords: | Application to set aside default judgment Application for extension of time to file an application for leave to appeal Application for stay of execution |
Legislation: | Nil |
Case References: | Jackamarra v Krakouer (1998) 195 CLR 516 Palata Investments Ltd & Ors v Burt & Sinfield Ltd & Ors [1985] 2 All ER 517 Re Jennings (1986) 69 ALR 265 Wentworth v Attorney General (NSW) (1984) 154 CLR 518 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Carr v Finance Corporation of Australia (1981) 147 CLR 246 Chisholm v Norgard (1991) 4 WAR 202 CM van Stillevoldt CV v El Carriers Inc [1983] 1 WLR 207 Commonwealth Development Bank of Australia v Nertec Pty Ltd & Ors [1999] WASCA 311 Commonwealth v Hospital Contributions Fund of Australia (1982) 150 CLR 49 Croney v Nand [1999] 2 Qd R 342 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Kostokanellis v Allen [1974] VR 596 Miles v Bull [1969] 1 QB 258 Pillinger v Ropework Services International Pty Ltd, unreported; SCt of WA; Library No 7976; 5 December 1989 Rosing v Shemesh [1960] VR 173 SCM Chemical Ltd v Saipem Australia Pty Ltd (1991) 4 WAR 569 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- JOSEPH TILLI
Appellants
AND
DESMOND LLOYD DELMARCO
VALMA DELMARCO
BETTY WOOLDRIDGE
BOORN INVESTMENTS PTY LTD
BRIAN FRANCIS O'CONNOR
MARGARET ANNE O'CONNOR
LYNX NOMINEES PTY LTD
SYDNEY JAMES GODDARD
MARIE ADOLPHA ANDERSON
AUDREY ALMA VAN HATTEM
LEONARD ERNEST BLACKMORE
NORMA ISABEL BLACKMORE
IAN GEORGE GREEN
STREAMLINE PLUMBING PTY LTD
RONALD BLAKELEY
ELAINE JUNE BLAKELEY
MAVIS JOAN GAMBLE
PETER AYCKBOURN
MAVIS ELDER RUBY HIGGINS
LEONARD GEARY
JOAN MEREDYTH GEARY
(Page 2)
- EDITH ANNE KILMASTER
ATHOL CROSS PTY LTD
JAMES MATTHEW FLAHERTY
MINENCO HOLDINGS PTY LTD
Respondents
Catchwords:
Application to set aside default judgment - Application for extension of time to file an application for leave to appeal - Application for stay of execution
Legislation:
Nil
Result:
Application refused
Representation:
Counsel:
Appellants : Mr D P A Moen
Respondents : Mr I K Bellamy
Solicitors:
Appellants : David Manera
Respondents : Solomon Brothers
Case(s) referred to in judgment(s):
Jackamarra v Krakouer (1998) 195 CLR 516
Palata Investments Ltd & Ors v Burt & Sinfield Ltd & Ors [1985] 2 All ER 517
Re Jennings (1986) 69 ALR 265
Wentworth v Attorney General (NSW) (1984) 154 CLR 518
(Page 4)
Case(s) also cited:
Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142
Carr v Finance Corporation of Australia (1981) 147 CLR 246
Chisholm v Norgard (1991) 4 WAR 202
CM van Stillevoldt CV v El Carriers Inc [1983] 1 WLR 207
Commonwealth Development Bank of Australia v Nertec Pty Ltd & Ors [1999] WASCA 311
Commonwealth v Hospital Contributions Fund of Australia (1982) 150 CLR 49
Croney v Nand [1999] 2 Qd R 342
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Kostokanellis v Allen [1974] VR 596
Miles v Bull [1969] 1 QB 258
Pillinger v Ropework Services International Pty Ltd, unreported; SCt of WA; Library No 7976; 5 December 1989
Rosing v Shemesh [1960] VR 173
SCM Chemical Ltd v Saipem Australia Pty Ltd (1991) 4 WAR 569
(Page 5)
1 MASTER BREDMEYER: This is an application by the appellants dated 22 November 2000 for the following orders:
"1. The second and third defendants/applicants be granted leave to appeal the decision of Master Bredmeyer delivered in Chambers on 27 October 2000 in Supreme Court action CIV 1785 of 2000.
2. The application for leave to appeal be heard together with the appeal.
3. Such further orders or directions as this Court deems appropriate."
2 By a draft minute of proposed orders dated 26 January 2001 the appellants seek the following orders:
"1. The application be granted whereby the Defendants/Applicants be granted an extension of time within which to file their defence;
2. The default judgment ordered be set aside;
3. There be a stay on the writ of Fi Fa against the Defendants/Applicants pending the determination of the appeal and application for leave to appeal;
4. The default judgment ordered be stayed pending the outcome of the appeal and application for leave to appeal."
3 By way of background, in CIV 1785 of 2000, the plaintiffs issued a writ against Castlecity Pty Ltd ("Castlecity") and Mr Peter Tilli and Mr Joseph Tilli. The plaintiffs were a group of investors who loaned $958,000 to Castlecity through a mortgage broker, Blackburne & Dixon. The loan was secured by way of mortgage given by Castlecity against a property in Malaga. Mr Peter Tilli and Mr Joseph Tilli, who are father and son, were guarantors to that loan. A default judgment was entered against Messrs Tilli on 31 July 2000 for $582,587.92 and for costs for not having filed a defence. A default judgment was not entered against Castlecity.
4 On 27 September 2000 the property at Malaga, which was in the form of four, newly built, strata units, approved for medical suites, was sold by the plaintiff mortgagees by public auction for $360,000. The
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- Tillis were incensed by this. They say the sale was approximately $700,000 below the true value of the property. They say, inter alia, that the properties were not offered individually for sale as stated at the start of the auction, and that the attendees were not given a reasonable time to bid. The property was sold within five minutes of the commencement of the auction. Messrs Tilli purported to file a defence set off and counterclaim on 13 October 2000. It is brief document consisting of one page excluding the title page. The defendants were at that time representing themselves in person. But it was too late. Default judgment had already been entered against them on 31 July.
5 On 30 October 2000 the plaintiffs issued a writ of fieri facias against Messrs Tilli and it was entered against their title to Lots 53 and 54 Mallard Way, Cannington, being the whole of the land in Certificate of Title Volume 1805 Folio 193 which they own as tenants in common.
6 On 13 October 2000 Messrs Tilli applied by way of chamber summons for a stay of execution on the default judgment; for an order that the default judgment be set aside; and that they be given leave to file and serve a defence. That application came on for hearing before me on 27 October 2000. Mr J Tilli represented his father and himself, and Mr Bellamy, of counsel, represented the plaintiffs. I dismissed the application and ordered costs to the plaintiffs in any event. I delivered oral reasons which have not hitherto been produced to writing but which I now do:
" This is an application by Messrs Tilli:
(1) to set aside a default judgment of 31 July 2000 for failure to file a defence; and
(2) for a stay of execution.
On (1), the applicant needs to show:
(a) an explanation as to why the judgment went by default; and
(b) an arguable defence on the merits.
(Page 7)
- On (b), however, I do not consider the defendants have an arguable defence on the merits. Their defence - as set out in the affidavit and defence and counterclaim - is that the mortgaged properties were sold without good faith and far too cheaply. That sale took place on 27 September 2000. That was after the judgment. It does not produce a defence to the default judgment.
The stay application is made under O 47 r 13(1)(a) - special circumstances. They relate to the auction, that the sale was made in bad faith. I do not much like Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 or Commonwealth Development Bank of Australia v Nertec Pty Ltd & Ors [1999] WASCA 311. But they are binding on me. This application will be dismissed."
- My orders are the subject of the present application for leave to appeal.
7 In support of the application Mr Joseph Tilli has sworn an affidavit on 31 January 2001 and Mr Moen, of counsel, has supplied me with a written outline of submissions and also made oral submissions.
8 I consider, first, the application to set aside the default judgment of 31 July 2000. This is the applicants' second application to set aside the default judgment. They can only bring a second application if the whole of the evidence available to the defendants was not presented on the first application and the justice of the case demands it: Seaman 13.10.1. The affidavit in support of 31 January contains some new material as to why the judgment went by default. I propose to entertain this second application. Mr Tilli, in his affidavit, says that on 7 July he received a copy of the writ of summons by way of service and asked Mr Robert Guerrini, a solicitor, to look after the matter. He, evidently, prepared a memorandum of appearance which the three defendants filed and served on 17 July. The appearance stated that they were acting in person. On 27 July Mr Guerrini advised them by fax that they needed to attend a status conference. No mention at that time was made of the need to file and serve a defence. On 27 July Mr Guerrini informed him that his firm would not be representing the defendants. They received notice of a status conference to be held on 3 August. Mr Tilli forwarded this to Mr Guerrini and he thought that Mr Guerrini was going to attend on their behalf. However, no one attended on their behalf. Mr Tilli and his father were unable to attend on that day, being engaged in another court on another matter. Mr Tilli said he also understood that a defence had been filed by Mr Guerrini's office and that all necessary court documents had
(Page 8)
- been attended to. He was not told that Mr Guerrini did not attend the status conference and had not filed a defence. When the default judgment was brought to Mr Tilli's attention he immediately took action and made enquiries of Mr Guerrini. Mr Tilli said:
"We were at no time made aware prior to the 3 August 2000 status conference as to when the time for entering a defence was limited to as we were never informed as to when the 14 days after the last day of the time limited for entering an appearance, would be. We were not informed of this time period by our then solicitors and in any event understood that all necessary documents had been filed by Camillo D'Angelo when the memorandum of appearance had been filed and served."
(I add that Mr Guerrini is employed by Mr D'Angelo.) Considering this material, I remain of the view that the defendants, who were really unrepresented, although they had some help from Mr Guerrini, have offered a reasonable explanation as to why the judgment was allowed to go by default.
9 I now consider whether the defendants have an arguable case on the merits. I think not. Their complaint about the mortgagees' lack of good faith in selling the Malaga property far too cheaply relates to events which happened on 27 September 2000, that is two months after the default judgment was entered. This may be the subject of a separate cause of action, but can produce no defence to the plaintiffs' claim that the sum stated in the writ was properly due and owing by the defendants as at 31 July 2000, the date of the default judgment. I thus decline to set aside the default judgment. It follows from that that I will not grant the defendants an extension of time within which to file their defence.
10 I next consider the application by Messrs Tilly to be granted leave to appeal my decision of 27 October 2000 in CIV 1785 of 2000. A preliminary problem is that the appeal notice is out of time. It should have been filed by 17 November 2000. Instead it was filed on 22 November 2000. The defendants need leave to extend the time to file this appeal. I take it that the defendants, in the course of their argument, have orally asked for an extension of time. In Palata Investments Ltd & Ors v Burt & Sinfield Ltd & Ors [1985] 2 All ER 517 the English Court of Appeal said that the power to extend the time for appealing beyond the time limit is in the discretion of the court and is unfettered and will be exercised flexibly and with regard to the facts of the particular case. Where the delay is very short and there is an acceptable excuse for it, the court will not, as a general rule, deprive the appellant of his right of
(Page 9)
- appeal, and in such case it will not be necessary for the court to consider the merits of the appeal. In Jackamarra v Krakouer (1998) 195 CLR 516 the High Court was considering an application for an extension of time within which to enter an appeal, but the same principles apply, with some small adaptation, to an application to lodge an appeal out of time. The principal factors are the length of the delay, the reasons for the delay, whether there is an arguable case and extent of any prejudice to the respondent and other matters mentioned by Kirby J, for example, whether the delay was intentional or contumelious, or merely the result of a bona fide mistake or blunder; and whether the delay was that of the litigant or of his lawyers.
11 In this case the delay is short, only five days. No explanation for it has been given in the affidavit material. An explanation is normally required if the court is going to exercise a discretion in favour of an applicant. In this case I do not think the appeal has any merit, for the reason already given that the proposed defence arises out of a sale which occurred two months after the default judgment was entered, and logically cannot form a defence to the plaintiffs' claim. Is there prejudice to the defendants if time for appeal is not extended? The answer is no. I have just given an order today declining to set aside the default judgment. That order is appealable. I propose to decline to give the extension.
12 In view of that finding it is unnecessary for me to consider the question of leave to appeal.
13 The final matter for determination is the defendants' application for a stay on the writ of fi fa or on the execution of the default judgment, pending the outcome of the application for leave to appeal. In arguing for a stay, counsel for the defendants did not limit himself to a stay pending an appeal. He also relied on the inherent jurisdiction of the court to stay proceedings whenever it is just and equitable to do so. He relied on Wentworth v Attorney General (NSW) (1984) 154 CLR 518 at 526. He submitted that this was an arguable case and the court should look at the balance of convenience and the rights of the parties but, in any event, it is a matter for the exercise of discretion in each case. This is the applicants' second application for a stay of execution. As related above, a similar application was made and rejected by me on 27 October 2000. A second application can be made but is normally made to the Full Court: Seaman 63.15.4. I will hear this new application although no new evidence has been put before me. I do so as an indulgence to the applicants. It may be in the interests of parties to have this application heard along with the other procedural applications.
14 Mr Moen argued that an important factor in the present case is that if a stay were not granted, especially in respect of the writ of fi fa, the appeal will be negated if there is a destruction of the finances of the individuals pending the hearing of the appeal. He said personal injury, and financial ruin, are serious factors to weigh in the balance, as is the prejudice for and against a specific party: see Jennings (1986) 69 ALR 265 at 267. Counsel for the defendants asked me to take notice of the fact that these defendants have been before the court as defendants in numerous cases in recent months and that it is obvious that they have very limited means. That is a fair comment, but not a substitute for evidence. There is no affidavit evidence before me that this fi fa will prevent these applicants arguing the appeal. As a result of my reasons there is no appeal, and, if my reasoning is correct, the defendants need to bring a fresh action if they wish to challenge the bona fides of the sale of the mortgaged property. Mr Moen said in oral argument that a writ of fi fa was lodged against the home of one of the Tillis. There is no affidavit evidence on that and, without such evidence, I do not think that that is right. Mr Joseph Tilli lives at 10 Cameron Court, Willetton and Mr Peter Tilli lives at 40 Deverell Way, Bentley . Those properties may be registered in their names and a fi fa may have been lodged against them but in the appeal papers, prepared for the proposed appeal against my decision of 27 October 2000, the property the subject of the writ of fi fa causing them concern is Lots 53 and 54 Mallard Way, Cannington, the subject of Certificate of Title Volume 1805 Folio 193. This is a property in the name of Mr Joseph Tilli as one undivided third share and Mr Peter Tilli as two undivided third shares, as tenants in common.
15 I am not willing to grant a stay of execution. As previously stated, the defendants need to bring a fresh action against the mortgagees for the sale of the Malaga property in bad faith, resulting in a poor price and hence loss to Castlecity, the principal debtor, but more relevantly here, loss to Messrs Tilli who as guarantors are required to pay the shortfall.
16 The result is that all applications will be dismissed.
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