TILLI & ANOR -v- DELMARCO & ORS [2001] WASCA 26

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 26
Case No:	FUL:183/2000	Heard:	31 JANUARY 2001
Coram:	MASTER BREDMEYER	Delivered:	14/02/01
No of pages:	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

CITATION : TILLI & ANOR -v- DELMARCO & ORS [2001] WASCA 26 CORAM : MASTER BREDMEYER HEARD : 31 JANUARY 2001 DELIVERED : 14 FEBRUARY 2001 FILE NO/S : FUL 183 of 2000 BETWEEN : PETER TILLI

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…

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: [2001] WASCA 26
Decision Date: 14 FEBRUARY 2001

CaseChat Overview and Summary

In the case of Tilli v DELMARCO, the plaintiff, Tilli, applied to set aside a default judgment made against him in the Magistrates Court. The default judgment was entered due to Tilli's failure to file a defence within the required time frame. Additionally, Tilli sought an extension of time to file an application for leave to appeal against the default judgment and requested a stay of execution of the judgment pending the outcome of the appeal.

The legal issues before the court included whether the plaintiff had a sufficient basis to set aside the default judgment, whether the plaintiff's delay in seeking to appeal the judgment was justified, and whether the stay of execution should be granted pending the outcome of the appeal application. The court considered the relevant statutory provisions, case law, and the principles of justice in determining these issues.

The court found that the plaintiff had not demonstrated a sufficient basis to set aside the default judgment, as there was no evidence of a genuine defence or a valid reason for the delay in filing a defence. The court also determined that the plaintiff's delay in seeking to appeal the judgment was not justified, as there was no exceptional circumstance warranting an extension of time. Furthermore, the court held that a stay of execution was not appropriate, as the plaintiff had not established a strong likelihood of success on appeal. Consequently, the court refused all of the plaintiff's applications.

Orders

Orders of the court

Application refused

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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