West Coast Transport Pty Ltd v Adams Group Services Pty Ltd - [2001] TASSC 94

[2001] TASSC 94

CITATION:West Coast Transport Pty Ltd & Anor v Adams Group Services Pty Ltd & Anor [2001] TASSC 94

PARTIES: WEST COAST TRANSPORT PTY LTD

DE BRUYN & SON PTY LTD
v
ADAMS GROUP SERVICES PTY LTD
ADAMS, Rawson

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  63/2000
DELIVERED ON:  15 August 2001
DELIVERED AT:  Hobart
HEARING DATE:  14 June 2001
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Judgments and orders - Amending varying and setting aside - Actions to review or set aside judgment - In general - Judgment in default of defence.

Evans v Bartlam [1937] AC 473; Grimshaw v Dunbar [1953] 1 QB 408, followed.
Aust Dig Procedure [490]

Evidence - Affidavits and statutory declarations - Affidavits - Use of affidavits - Cross-examination of deponent - Application to set aside judgment - Exemption from further cross-examination.

Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503; Sullivan v Henderson [1973] 1 All ER 48, followed.
Aust dig Evidence [252]

REPRESENTATION:

Counsel:
             Appellants:  S B McElwaine
             Respondents:  J Lynch
Solicitors:
             Appellants:  S B McElwaine
             Respondents:  Shields Heritage

Judgment Number: [2001] TASSC 94
Number of paragraphs: 13

Serial No 94/2001
File No 63/2000

WEST COAST TRANSPORT PTY LTD
and DE BRUYN & SON PTY LTD v
ADAMS GROUP SERVICES PTY LTD and RAWSON ADAMS

REASONS FOR JUDGMENT COX CJ

15 August 2001

This is an appeal from a decision of the Master whereby he granted an application by the respondents to set aside a judgment for damages to be assessed which was entered against them on 8 August 2000 in default of the delivery of a defence. The writ with statement of claim annexed filed on 1 May 2000, was delivered to the respondents in Victoria some time prior to 3 July 2000, on which date a Victorian solicitor purportedly entered an appearance on their behalf. A fortnight later, to cure any irregularity in the entry of that appearance, Tasmanian solicitors filed a fresh appearance on their behalf. On 7 August 2000, the Victorian solicitor notified the appellants' solicitor that instructions had been received for a defence, that he expected to forward a draft defence to the respondents' Tasmanian solicitor on the record on 9 August and expected the defence to be delivered to the appellants' Tasmanian solicitor on Friday, 11 August or Monday, 14 August "at the latest". Presumably by this time the time limited for delivery of defence had expired as the Victorian solicitor asked the respondents' solicitor for his "brief indulgence". At 6pm on 7 August, the appellants' solicitor sent an email advising that the indulgence sought would not be afforded. On 8 August, the Victorian solicitor telephoned the appellants' solicitor and was advised that judgment in default of defence had been entered that day. The Victorian solicitor said in a letter to the appellants' solicitor dated 8 August 2000 that the respondents intended to apply to have the judgment set aside. The application to set aside the judgment…

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 West Coast Transport Pty Ltd v Adams Group Services Pty Ltd

Details

AGLC: West Coast Transport Pty Ltd v Adams Group Services Pty Ltd [2001] TASSC 94
Case: [2001] TASSC 94
Decision Date: 15 August 2001

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an appeal against a decision of the Master to set aside a judgment entered against Adams Group Services Pty Ltd and Rawson Adams on default of defence. The appellants, West Coast Transport Pty Ltd and De Bruyn & Son Pty Ltd, sought damages for the transportation and storage of a dismantled paper machine, as well as interest on their overdraft accounts due to the non-payment of the amounts claimed. The respondents sought to set aside the judgment and filed a counterclaim for damages to the goods while in the appellants' possession. The court considered the legal issues surrounding the setting aside of a judgment obtained by default, the use of cross-examination on affidavits in such proceedings, and the merits of the respondents' defence. The court found that the Master had discretion in determining whether to permit further cross-examination and had not erred in exempting the second named respondent from further cross-examination. The appeal against the setting aside of the judgment against the first named respondent was allowed, and the judgment would stand with a stay of proceedings conditioned on the diligent prosecution of the counterclaim. The appeal against the setting aside of the judgment against the second named respondent was dismissed.

Orders