Troiani v Alfost Properties Pty Ltd - [2002] QCA 281

[2002] QCA 281

COURT OF APPEAL

McPHERSON JA
WHITE J
WILSON J

Appeal No 9560 of 2001

SANTE TROIANI First Appellant

and

RITA CESARINA TROIANI Second Appellant

and

ALFOST PROPERTIES PTY LTD (CAN 010 560 639) Respondent

BRISBANE

..DATE 02/08/2002

JUDGMENT

McPHERSON JA: This is an appeal by defendants in an action in the District Court from a decision refusing to set aside a judgment entered on 9 June 2000 in default of the defendants filing notice of intention to defend the claim.

The claim was based on a written agreement of 30 April 1996 for the loan of a sum of $230,000 but the claim in the action itself was limited to interest totalling $99,475.02, which by the time judgment was entered on 9 June 2000 had increased to $100,617.52. It was not suggested that the judgment was not regularly obtained and the application to set it aside rested on the defendants' assertion that they had a defence on merits.

Their principal defence is that there was another agreement between the parties by which the defendants' obligation to pay principal and interest under the loan agreement was varied so as to be discharged if the defendants arranged for Wide Bay Brickworks Pty Ltd to provide discounted bricks and paving stock to ABC Brick Sales. By way of explanation, Wide Bay Brickworks Pty Ltd was a company of which the first defendant was then a director, and ABC Brick Sales was the business name of a company Thandwalla Holdings Pty Ltd of which a Mr Ivan Parker was a director. That company, in turn, owned 25 per cent of the issued share capital of the plaintiff, which is now the respondent to this appeal.

In material filed by the plaintiff in opposition to the application to set aside the judgment it is deposed on behalf of the plaintiff that there was no such agreement for variation or discharge of the loan, as alleged by the defendant. It was also deposed that a weighbridge document purporting to record consignments of bricks from the brick work yard of Wide Bay Brickworks Pty Ltd did not, as the defendants asserted it did, bear the handwriting of a Mr Taylor, the yard manager of Wide Bay Brickworks.

Confronted with this conflict of evidence the learned Judge, in my opinion correctly, concluded that the matter was one that could not be resolved on the affidavit evidence in the application before him. In the result he found that the applicant/defendants had succeeded in showing a defence on the merits. His Honour then turned to the question of delay in making the application to set aside the judgment, considered with the explanation advanced by the defendants for their failure to appear and defend.

In substance the defendants asserted that the delay between the date on which they were served with the claim, on 30 March 2000, and the date on which the application to set aside the judgment was filed, was partly due to the failure of…

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: [2002] QCA 281
Decision Date: 02/08/2002

CaseChat Overview and Summary

In the case of Troiani v Alfost Properties Pty Ltd, the Court of Appeal was asked to determine an appeal against a decision made in the District Court which had refused to set aside a default judgment. The judgment in question was entered on 9 June 2000 for the amount of $100,617.52 in interest on a loan of $230,000. The defendants, Sante Troiani and Rita Cesarina Troiani, appealed the decision, asserting that they had a defence on the merits and that the delay in filing their application to set aside the judgment was satisfactorily explained. The central legal issue for the Court of Appeal was whether the defendants had demonstrated a sufficient explanation for the delay in their application and whether they had a defence on the merits that warranted setting aside the default judgment.

The Court of Appeal examined the defendants' explanation for the delay, which included a failure by their former solicitor to advise them of the judgment entry and communications from the plaintiff's solicitors. The Court found that the defendants had provided a satisfactory explanation for the delay, particularly considering the period after they had engaged new solicitors. The Court noted that while there was a significant delay prior to engaging new solicitors, the period between engaging the new solicitors and filing the application was reasonable, given the circumstances, including the difficulty in accessing documents due to the receivership of Wide Bay Brickworks Pty Ltd. The Court also found that the defendants had demonstrated a defence on the merits, which was sufficient to justify setting aside the judgment. The Court highlighted that it is an unusually heavy sanction to refuse to set aside a judgment when a plausible defence on the merits exists.

The Court of Appeal allowed the appeal and set aside the default judgment, ordering the defendants to file a defence within 21 days and pay the plaintiff's costs of the application to set aside the judgment. The costs of the appeal were ordered to be the respondent's costs in the cause, meaning that if the plaintiff ultimately succeeds in the action, it would recover the costs of the appeal. The presiding Judge and the other members of the Court agreed with the proposed orders based on the reasoning provided.

Orders