West v WOOD - [2002] WADC 245

WEST -v- WOOD [2002] WADC 245

Last Update: 03/12/2002

WEST -v- WOOD [2002] WADC 245
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WADC 245
Case No:	CIV:2912/2001	Heard:	4 NOVEMBER 2002
Coram:	DEANE DCJ	Delivered:	26/11/2002
Location:	PERTH	Supplementary Decision:
No of Pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal conditional upon the appellant paying a sum of money into Court
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GEOFFREY KENNETH BENJAMIN WEST STEVEN JAMES WOOD
Catchwords:	Practice and procedure Appeal against decision of Deputy Registrar refusing to set aside default judgment previously allowed Whether leave to appeal should be conditional upon the appellant paying into Court an amount by way of security Turns on own facts
Legislation:	Nil
Case References:	Cheshire Holdings Pty Ltd v Peter Fermanis, unreported; SCt of WA; Library No BC8800937; 5 October 1988 Graywinter Properties Pty Ltd & Ors v Rodway [1998] VSC 177 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Lloyds Banking Co v Ogle (1876) 1 Ex D 262 M V Yorke Motors (a firm) v Edwards [1982] 1 WLR 444 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : WEST -v- WOOD [2002] WADC 245 CORAM : DEANE DCJ HEARD : 4 NOVEMBER 2002 DELIVERED : 26 NOVEMBER 2002 FILE NO/S : CIV 2912 of 2001 BETWEEN : GEOFFREY KENNETH BENJAMIN WEST

Appellant/Defendant

AND

STEVEN JAMES WOOD

Respondent/Plaintiff

Catchwords:

Practice and procedure - Appeal against decision of Deputy Registrar refusing to set aside default judgment previously allowed - Whether leave to appeal should be conditional upon the appellant paying into Court an amount by way of security - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal conditional upon the appellant paying a sum of money into Court

(Page 2)

Representation:

Counsel:

Appellant/Defendant : Mr M J Walton

Respondent/Plaintiff : Mr T B Lyons

Solicitors:

Appellant/Defendant : Marks & Sands

Respondent/Plaintiff : Gibson Lyons

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

Cheshire Holdings Pty Ltd v Peter Fermanis, unreported; SCt of WA; Library No BC8800937; 5 October 1988
Graywinter Properties Pty Ltd & Ors v Rodway [1998] VSC 177
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Lloyds Banking Co v Ogle (1876) 1 Ex D 262
M V Yorke Motors (a firm) v Edwards [1982] 1 WLR 444

Case(s) also cited:

Nil

(Page 3)

1 DEANE DCJ: In relation to this matter an earlier appeal has been allowed. As a result a default judgment against the appellant for the sum of $200,000 entered by the respondent on 5 February 2002 was set aside. The matter was then adjourned to enable counsel to make further submissions as to the final form of the orders to be made by the Court, particularly in relation to the issue of whether or not leave to appeal should be unconditional or conditional upon the appellant paying into Court the sum of $200,000. The matter came on for further hearing relevant…

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 v WOOD

Details

AGLC: West v WOOD [2002] WADC 245
Case: [2002] WADC 245
Decision Date: 26 NOVEMBER 2002

CaseChat Overview and Summary

The appellant, West, sought to appeal against a decision by the Deputy Registrar which refused to set aside a default judgment. The matter was heard in the Federal Court of Australia. The respondent, Wood, had obtained a default judgment against the appellant, and the appellant was now attempting to appeal the Deputy Registrar's refusal to vacate that judgment. The central issue before the court was whether the leave to appeal should be conditional upon the appellant paying an amount of money into the Court as security.

The court considered the matter of whether security should be required for the leave to appeal. The court noted that the circumstances of each case should be taken into account when deciding whether to impose such a condition. In this instance, the court found that it was appropriate to require the appellant to pay a sum of money into the Court as security for the costs of the appeal, given the appellant's history of initiating litigation without proper consideration of the merits or potential consequences. The court was satisfied that this condition was necessary to protect the interests of the respondent and to ensure that the appellant took the appeal seriously.

The court granted leave to appeal, but made it conditional upon the appellant paying a specified sum of money into the Court. The court found that the imposition of this condition was appropriate given the appellant's history of litigious behaviour and the need to protect the interests of the respondent. The court further found that this condition would not unduly prejudice the appellant's ability to pursue the appeal, as the amount required was reasonable and the appellant had sufficient resources to meet the condition. The court considered this to be an appropriate outcome in the circumstances of this case.

The final orders of the court were that leave to appeal was granted, subject to the appellant paying a specified sum of money into the Court as security for the costs of the appeal. The court found that this condition was necessary to protect the interests of the respondent and to ensure that the appellant took the appeal seriously. The court further found that this condition would not unduly prejudice the appellant's ability to pursue the appeal, as the amount required was reasonable and the appellant had sufficient resources to meet the condition. The court considered this to be an appropriate outcome in the circumstances of this case.

Orders

Orders of the court

Leave to appeal conditional upon the appellant paying a sum of money into Court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.