White City Investments Pty Ltd v Parkjoh Pty Ltd
[2015] WADC 80
•3 JULY 2015
WHITE CITY INVESTMENTS PTY LTD -v- PARKJOH PTY LTD [2015] WADC 80
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 80 | |
| Case No: | APP:124/2014 | 3 JUNE 2015 | |
| Coram: | PETRUSA DCJ | 3/07/15 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on grounds 1 and 5 Leave to appeal granted on grounds 2, 3, 4, 6 and 7 Appeal upheld | ||
| PDF Version |
| Parties: | WHITE CITY INVESTMENTS PTY LTD PARKJOH PTY LTD JOHN FREDERICK PARK |
Catchwords: | Practice and procedure Leave to appeal from magistrate's decision dismissing appellant's application to set aside springing order and to enter default judgment Turns on own facts |
Legislation: | Nil |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Brocklehurst v Wolinski [2015] WADC 36 CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 House v R [1936] HCA 40; (1936) 55 CLR 944 Lance v Hogerdyk [2013] WADC 190 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128 Simonsen v Legge [2010] WASCA 238 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PARKJOH PTY LTD
First Respondent
JOHN FREDERICK PARK
Second Respondent
Catchwords:
Practice and procedure - Leave to appeal from magistrate's decision dismissing appellant's application to set aside springing order and to enter default judgment - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused on grounds 1 and 5
Leave to appeal granted on grounds 2, 3, 4, 6 and 7
Appeal upheld
Representation:
Counsel:
Appellant : Ms S Radanovic
First Respondent : Mr R E Lennon
Second Respondent : Mr R Lennon
Solicitors:
Appellant : Mony De Kerloy
First Respondent : Park Legal Solutions
Second Respondent : Park Legal Solutions
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brocklehurst v Wolinski [2015] WADC 36
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
House v R [1936] HCA 40; (1936) 55 CLR 499
Lance v Hogerdyk [2013] WADC 190
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Roy Galvin & Co Pty Ltd v Ives [No 2] [2013] WADC 128
Simonsen v Legge [2010] WASCA 238
- PETRUSA DCJ:
Introduction
1 The appellant is the plaintiff in a landlord/tenant dispute. On 28 March 2014 a magistrate made an order (the springing order) that unless the appellant lodged a complete listing conference memorandum (including statements of intended evidence of all witnesses on which it intended to rely) within 14 days of the service of the order, default judgment would be entered against the appellant without a trial.
2 On 8 April 2014 the appellant filed an application to set aside or recall the springing order (the application).
3 On 29 August 2014 the application came before the magistrate that had made the springing order. The magistrate dismissed the application, found that there had been non-compliance with the springing order and dismissed the appellant's claim without trial and ordered that the appellant pay the respondents' costs.
4 The appellant now seeks leave to appeal the decisions of 28 March 2014 and 29 August 2014.
The relevant events
5 It is necessary, in order to put the circumstances leading to the orders of the magistrate in context, to trace the history of the action.
6 The Magistrates Court file has been provided to this court pursuant to r 52(3) of the District Court Rules 2005 together with the transcripts of the proceedings that took place in that court, on 20 December 2013, 28 March 2014, 26 May 2014, 27 June 2014 and 29 August 2014.
7 This matter arises out of a four-year lease agreement entered into in October 2007 between the appellant (as lessor) and the respondents (as lessee) over a commercial property located at 4, 33 Barrack Street, Perth. Over the course of the following four years, disputes arose concerning the non-payment of certain variable outgoings and the date on which the respondents vacated the property. As a result the appellant commenced proceedings in the Magistrates Court on or about 8 October 2012. The respondents filed an intention to defend. On 25 February 2013 various programing orders were made requiring the lodgement of a statement of claim and a statement of defence, the exchange of lists of documents and the lodgement of listing conference memorandum. Had there been compliance with these programing orders, the listing conference memorandum of both parties would have been lodged by 31 May 2013. This did not occur.
8 By mid-June 2013 the parties had only just filed and served their discovery and by the end of September there had been mutual inspection of the documents the subject of discovery.
9 The respondents, on 8 October 2013, lodged with the court their listing conference memoranda.
10 The appellant did not lodge its listing conference memoranda. It did however on 16 October 2013 lodge an application for, amongst other things, 'specific discovery of 12 categories of documents' (the discovery application). The discovery application appears to have come about after there had been a failure to agree that there was outstanding discovery on the part of the respondents. The discovery application was not finally resolved until 20 December 2013 when the matter came before Magistrate Cockram. Magistrate Cockram granted (in part) the appellant's discovery application. The respondents were given 28 days to comply with the order. Magistrate Cockram also ordered that the appellant lodge its listing conference memorandum 21 days after the respondents had complied with the order for specific discovery. It is relevant to note that the orders made by Magistrate Cockram were in the following terms, namely:
(1) as to the [appellant's] application lodged 16 October 2013 orders as asked in paragraph 1 in terms of amended annexure A; and
(2) time for the [appellant] to lodge its listing conference memoranda is extended for 21 days after the [respondents'] comply with order 1 whereof.
11 Paragraph 1 of the appellant's application of 16 October 2013 was in the following terms, namely:
The [respondents] lodge and serve pursuant to section 16(1)(n) and r 30, the Form 35 and 36 affidavit verifying specific disclosure of documents and list of documents within 28 days hereof in accordance with specific discovery specified in annexure 'A' hereto or such portions thereof and the court sees fit to require.
12 On 17 January 2014 the respondents complied with Magistrate Cockram's order. Accordingly, the appellant was required to lodge its listing conference memorandum on or before 7 February 2014. The appellant did not do so.
13 On or about 13 February 2014 the respondents lodged an application for default judgment citing the appellant's failure to lodge with the court its listing conference memoranda as the basis for their application. It is this application that came before her Honour Magistrate Boon on 28 March 2014.
14 On 18 February 2014 the appellant requested copies of various documents specified in the respondents' list of documents served on 17 January 2014. On 4 March 2014 the appellant received copies of the documents it had requested.
15 On 24 March 2014 the appellant lodged with the court the following:
(a) A Form 2 affidavit attaching a listing conference memorandum dated 24 March 2014 and a Form 32A witness statement of Tomas Mijatovic.
(b) A Form 23 response (with a supporting affidavit) in opposition to the respondents' application of 13 February 2014 for default judgment.
16 On 28 March 2014 the matter came before Magistrate Boon for hearing of the respondents' default judgment application. The appellant did not appear and there was no explanation before her Honour for that failure. The matter proceeded ex parte. I note that r 113 of the Magistrates Court (Civil Proceedings) Rules 2005 (MCCPR) required the magistrate to make an order that the matter proceed ex parte. This did not occur.
17 It became apparent during the hearing on 28 March 2014 that the listing conference memorandum filed by the appellant was incomplete. Rule 43A of the MCCPR relevantly provides that the listing conference memorandum must annex a statement in the approved form of the intended evidence of each witness who is not an expert witness unless the registrar or the court orders otherwise.
18 The appellant's listing conference memorandum named four witnesses. Only one statement, that of Tomas Mijatovic, was attached. There was no explanation for this.
19 It is against this background that Magistrate Boon made the springing order which was in the following terms, namely:
(1) The time within which the [appellant] may lodge a complete listing conference memoranda (including statements of intended evidence of all witnesses on which it intends to rely) is extended to 14 days from the date of service of these orders on the [appellant].
(2) If the [appellant] does not comply with order (1) hereof, default judgment will be entered against the [appellant] without a trial pursuant to s 19(2) of the Magistrates Court (Civil Proceedings) Act.
(3) The [appellant] pay the [respondents'] costs of the application to be assessed if not agreed.
20 The order was served on the appellant by no later than 2 April 2014. On 8 April 2014 (within the 14-day period allowed for compliance with the springing order) the appellant filed an application to set aside or recall the orders made on 28 March 2014. This application was not heard until 29 August 2014.
21 On 23 June 2014 the appellant filed a further Form 32A statement of evidence of Radmila Mijatovic, who had been named in the listing conference memorandum of 24 March 2014. It became apparent at the hearing on 29 August 2014 that subject to any dispute, the two other witnesses named on the appellant's listing conference memorandum of 24 March 2014 were experts and therefore statements of evidence were not required.
22 On 29 August 2014 her Honour made the following orders, namely:
1. The appellant's application to set aside the orders made on 28 March 2014 be dismissed.
2. The springing order made on 28 March 2014 had sprung due to non-compliance.
3. Notwithstanding that the springing order had sprung, that default judgment should be entered against the appellant without trial.
4. The appellant pay the respondents' costs to be taxed including reserve costs.
23 On 18 September 2014 Appeal No 92 of 2014 (the first appeal) was commenced by the appellant. This appeal was lodged without the benefit of legal representation. At a direction hearing on 18 November 2014 before Deputy Registrar Hewitt, the capacity of the appellant (who was still being represented by Mr Mijatovic) to commence the appeal without legal representation was ventilated. Deputy Registrar Hewitt decided this was an irregularity that could be corrected by the appellant engaging legal representatives who could take over the conduct of the appeal. The respondents sought to appeal this decision. The appellant subsequently engaged legal representatives who discontinued the first appeal (in order to avoid any dispute about the efficacy of the first appeal) and instituted the current appeal. Both the current appeal and the first appeal sought to appeal the orders made on 28 March 2014 and 29 August 2014.
Leave to appeal
24 Insofar as the orders of 28 March 2014 were concerned, both the current appeal and the first appeal were out of time and leave to appeal is, and was, required. The first appeal however, was instituted within 21 days of the orders of 29 August 2014 and leave to appeal was not required.
25 This appeal was not commenced until 17 December 2014 and, accordingly, leave is also required in respect of the orders of 29 August 2014: s 40(3) of the Magistrates Court (Civil Proceedings) Act 2014 (MCCPA).
26 The relevant matters to consider when a party's appeal is out of time and that party seeks to extend time for the filing of the notice of appeal were considered in Simonsen v Legge [2010] WASCA 238 [8], and need not be repeated here. These principles have been applied in this court in relation to s 40(3) of the MCCPA: Roy Galvin & Co Pty Ltd v Ives[No 2][2013] WADC 128; Lance v Hogerdyk [2013] WADC 190; Brocklehurst v Wolinski[2015] WADC 36.
27 In this case it is clear that notwithstanding that the current appeal (insofar as it relates to the orders of 29 August 2014) was commenced out of time, the appellant had commenced the first appeal within time. The respondents were at all times aware that the orders of 29 August 2014 were to be the subject of an appeal. Further, the basis on which the orders were to be appealed, were generally known to the respondents. In addition, the necessity for this appeal to be lodged was a commercial decision made by the appellant to avoid any controversy about the decision of the deputy registrar that the lodgement of the first appeal by the appellant 'in person' was a procedural one which could be corrected. It cannot be said that the delay (insofar as it relates to the orders of 29 August 2014) was intentional or contumelious.
28 Given that the appellant had to that point been represented by one of its directors, albeit one who had legal training and experience (though self-evidently outdated), it cannot be said (nor is it seriously contended) that the rules of court were deliberately flouted or that there was any injustice to the respondents. When the error was pointed out to the appellant prompt steps were taken to correct it.
29 Having regard to all these matters, an extension of time for leave to appeal the decision of 29 August 2014 should be granted.
30 With respect to the application for leave to appeal the orders of 28 March 2014, it is clear that this decision was at all times the subject of a dispute between the parties. The appellant had lodged an application to 'set aside or recall' those orders within a short time of being made aware of them. It sought to have those orders revisited in the Magistrates Court. That application was not heard until 29 August 2014. On this date, the circumstances surrounding the making of the springing order arose for consideration both in relation to the appellant’s application to set aside or recall the springing order and in relation to the decision to enter default judgment. Accordingly, those are issues which arise on those grounds which relate to the orders of 29 August 2014. The appeal insofar as it relates to the orders of 28 March 2014 was therefore unnecessary and, accordingly, I refuse leave to appeal in relation to ground 1 and 5 (being the grounds that relate to the orders made on 28 March 2014).
This appeal
31 There are numerous grounds of appeal that complain about various aspects of the orders made on 29 August 2014. Effectively though, the grounds are complaints that the magistrate made errors of law in:
1. Failing to exercise her discretion to extend time pursuant to s 12 and s 16 of the MCCPA; and
2. Exercising her discretion to enter judgment without trial (including an award for costs) against the appellant.
32 Given this is a decision from an exercise of discretion the principles in House v R [1936] HCA 40; (1936) 55 CLR 499, 504 – 505, apply. These principles are long established and need not be repeated here.
33 It is clear that on 29 August 2014 the magistrate found that the springing order she had made on 28 March 2014 had sprung notwithstanding that the application to set aside or recall the order was filed prior to the springing of the order (ts 55). Whilst I have some difficulty in accepting this proposition absent authority (which neither party was able to provide), I will proceed on the basis that the lodging of the application did not interfere with the running of time for the order. I take this approach on the basis that the magistrate was required to consider on 29 August 2014 whether the time to comply with the springing order should be extended notwithstanding that a judgment has been entered upon proof of default: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.
34 The general principles to be applied when considering whether to exercise the discretion to set aside judgment and extend time for compliance with the springing order include:
1. The circumstances in which the springing order came to be made;
2. The reasons for non-compliance with the springing order;
3. The prejudice to the defaulting party if time is not extended; and
4. The prejudice to the other party if the time were extended.
(See MTQ Holdings Pty Ltd v Lynch & Ors[2007] WASC 49)
35 It is also clear that a party does not have an entitlement to an extension of time subject to payment of costs by way of compensation. All matters relevant to the exercise of the power to extend time should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants – the concerns of case management – must be taken into account: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; MTQ Holdings Pty Ltd v Lynch & Ors.
36 It is therefore necessary to examine what occurred during the proceedings of 29 August 2014.
Events of 29 August 2014
37 It is clear that the learned magistrate understood that she had the power to relieve the appellant from the effects of the springing order notwithstanding what had taken place on 28 March 2014 or in fact since that time. She clearly identified the issue saying, variously:
What I see now as the real issue for me this afternoon, I made the springing order on 28 March. Whichever way you look at it, you did not comply. Your company did not comply with the requirements of that springing order in that the – whether or not it was three witnesses or one, I take your point it was only one witness, but you didn't lodge her witness statement within the 14 days I provided for in my springing order. The claimants' – the defendants say 'Well, the order is sprung' and they're now applying for judgment in relation to that. You're saying it should be – those orders should be set aside and it's clear that there is a dispute in which it does get it to a listing conference and proceed to trial. That's my understanding. The question is should that be allowed and - - - (ts 35)
The real issue is should your company now be deprived of an opportunity to prosecute its claim in these circumstances. (ts 36)
Both sides have now got their listing conference memoranda and witness statements in. In those circumstances why should I now deprive the claimant of an opportunity to have its day in court? (ts 42)
In the circumstances where I'm of the view that the springing order wasn't complied with it has - but the substance of the order now, if it's true that the other two witnesses two expert witnesses then the witness statements are in and the order has now been at least earlier orders have now been complied with.
In those circumstances then the - my question is should the orders I made on 28 March be set aside because to not do so would deprive the claimant company of an opportunity to prosecute its claim which is for tens of thousands of dollars. (ts 45)
38 Having correctly identified the issue that she had to determine, the magistrate exercised her discretion to enter judgment without trial, with costs against the appellant. From an examination of the transcript of proceedings the factors that the magistrate had regard to in exercising her discretion were:
1. There had been previous defaults by the appellant in complying with time limitations imposed by the court (ts 54, 59);
2. There had been a number of previous applications for default judgment by the respondents which although they had been dismissed '[did not] mean there wasn't a default' (ts 54);
3. There had been no adequate explanation for the failure to comply with the springing order (ts 54);
4. The springing order had in fact sprung;
5. There had been considerable delay in the case saying that there was a need to ensure that cases were dealt with 'justly and they [sic] include being dealt with efficiently and quickly and with a minimum of cost and a minimum of judicial time and resources'(ts 55). (Her Honour attributing a significant portion of this delay to the appellant); and
6. There was a need to assert the importance of case management principles and to 'guard against parties continually breaching case management guidelines' (ts 55).
39 It is evident then that the magistrate in exercising her discretion gave great weight to:
(1) non-compliance with court orders which she viewed as having been repeatedly breached;
(2) the need to uphold the integrity of the court's own process;
(3) delay; and
(4) the inadequate explanation for non-compliance with the springing order.
40 Whether it can be said that the weight given to these factors in all of the circumstances demonstrates an error of law in the exercise of the magistrate's discretion is the real question that arises in this appeal. In order to evaluate this it is necessary to consider factors relevant to the exercise of discretion to set aside judgment and extend time for compliance with the springing order.
The circumstances in which the springing order came to be made
41 The springing order was made ex parte. This was the one and only time that the appellant was not present in court. Sometime after this hearing it became apparent that Mr Tomas Mijatovic, a director of the appellant, who had to date been acting on its behalf, had not attended court on 28 March 2014 as his 3-year-old daughter had broken her collarbone and he had been at the hospital with her.
42 Whilst this explanation was not before the magistrate at the time, a Form 24 'Response to Application' with the supporting affidavit had been filed. This was a strong indication that the appellant had intended to appear at court, particularly given the history of this litigation. This was a litigation which had been hard fought on both sides and there was every reason to believe it would continue to be.
43 Further, the appellant had in fact filed a Form 32 listing conference memorandum with one Form 32A witness statement on 24 March 2014. It is clear that this was an attempt to comply with the order of 20 December 2014, albeit one that was out of time and incomplete.
44 In addition, the affidavit of Tomas Mijatovic dated 24 March 2014 contained the following statements, namely:
2. On 4 March 2014 I received for the first time for the claimant a bundle of copies from the defendants as to their specific discovery that I had earlier requested by email. Prior to 4 March 2014 I had never seen or received these documents.
3. The defendants were ordered on 20 December 2014 [sic] to file and serve their specific discovery 'as asked in paragraph 1' and that the Form 32 time was extended to 21 days from compliance with Order 1 – which means that the 21 days ran from the date of service of these copies as applied for in our application i.e. 28 days from 4 March 2014.
45 It was clear then that the appellant believed that there had in fact been compliance with the orders of 20 December 2013, given that the appellant's conference listing memorandum was filed 21 days from the date of production of the documents the subject of the specific discovery application. Whilst this interpretation of the order of 20 December 2013 is incorrect, it is clear that the appellant may have been operating under a misapprehension.
46 The magistrate was also aware that the appellant was at all times being represented by one of its directors, Tomas Mijatovic. While Mr Mijatovic had legal training and experience, it is clear from reading the transcript that any legal training or experience he had was dated and that he did not fully apprehend the changes that had taken place to the rules and processes that governed the proceedings and the court since he was in practice. The appellant then was more akin to a litigant in person. Courts tend to accord litigants in person greater latitude in matters of form and procedure.
47 It is also clear that it was the failure of Mr Mijatovic to attend on 28 March 2014 which was pivotal in what transpired next. His failure to attend was subsequently explained when he filed the application to set aside the springing order. This was done by 8 April 2014. It is an explanation that has not been seriously challenged. It is a reasonable explanation that is not met with the argument that someone else should have been able to attend.
48 A 'history of non-compliance' with court orders was also a factor noted by the magistrate on 28 March 2014. I will return to this issue later in my reasons.
Reasons for non-compliance with the springing order
49 When the matter came before the magistrate on 29 August 2014 the following explanations were given for non-compliance with the springing order, namely:
1. The appellant relied on the fact that an application to set aside or recall the springing order had been made and that application had not yet been resolved (ts 48).
2. There had in fact been compliance with the order of 20 December 2013, albeit this was incomplete (ts 48). The only outstanding Form 32A witness statement was that of Radmila Mijatovic and this had now been filed.
4. Ms Mijatovic's statement had not been filed earlier because she was an 83-year-old Holocaust survivor who was not in good health. She was stressed by the proceedings and had evinced a desire to have nothing to do with the matter (ts 48 - 49, 50).
5. Ms Mijatovic's statement was of limited relevance (ts 50) touching on a peripheral matter.
50 Whilst this explanation is not a complete one, it is an understandable one. When considered with the fact that there had been:
(1) at least partial compliance with the order;
(2) an apparent misunderstanding of what the order that Magistrate Cockram in fact required; and
(3) an application to have the springing order set aside filed,
- the explanation was comprehensive if somewhat flawed but not unreasonable.
Prejudice to the appellant if time is not extended
51 It is clear that when the matter came before the magistrate on 29 August 2014 that a failure to exercise her discretion to extend time would result in the appellant losing its claim and having costs awarded against it. Further, the appellant had by 29 August 2014 filed Ms Mijatovic's statement and subject to any dispute about whether the additional witnesses to be called were expert witnesses, the matter could have been listed for trial. The prejudice then to the appellant was substantial.
Prejudice to the respondents if time is extended
52 Beyond those matters already canvassed, the prejudice to the respondents was said to come about because of the appellant's history of non-compliance with orders giving rise to further delay in the litigation with the resultant impact on legal costs.
53 I note that it is the prejudice resulting from the time for compliance with the springing order being extended and not in the action overall which needs to be considered: CVW Group Holdings Pty Ltd v Addison & Ors [2011] WASC 267 [42]
54 In this regard then the relevant period is one of just over two months from 16 April 2014 (being the date for compliance with the springing order) to 23 June 2014 (being the date when the statement of Ms Mijatovic was filed).
55 This was an argument that encouraged Magistrate Boon to give great weight to the appellant's 'history of non-compliance' and its contribution to the delay in finalising the proceedings. Does close scrutiny of the matter justify the weight given to it?
56 Whilst it is true that there had been orders that had not been complied with, a review of the chronology of this matter demonstrates that the parties had been occupied with the discovery of documents since July 2013. A breakdown in communication (of which neither party was aware) gave rise to an application for default judgment that was not heard until mid-September 2013 (though it was first filed on 1 July 2013). Once that was resolved the appellant sought and ultimately obtained orders for specific discovery. Whilst it can be said that the appellant did not comply with the orders made in mid-September 2013 because it did not file its listing conference memorandum by 7 October 2013, the matter did not languish. The application for specific discovery was filed on 16 October 2013 when it was clear the parties could not agree (as evidenced by the respondents' request to the court for the issue of a Form 62 and subsequent application for default judgment). That application was not resolved until 20 December 2013.
57 Clearly the appellant has not performed as a model litigant, seeking timely extensions of orders when issues arose that it considered prevented it from complying with those orders. However it cannot be said that its conduct amounts to a flagrant or contumelious breach of court orders or that it had left the matter to languish. Further, considerable periods of the delay are explained by the time between when applications were filed and when they were heard by the court: two and a half months for the initial application concerning discovery; two months for the application for specific discovery; and over three months for the application to have the springing order set aside.
Decision
58 Whilst it is proper for the magistrate to have regard to these matters when considered against the additional period of delay (being two months), the explanation given for the non-compliance with the springing order and the substantial prejudice to the appellant, I find that the magistrate gave undue weight to:
1. non-compliance with court orders which she viewed as having been repeatedly breached;
2. the need to uphold the integrity of the court's own process; and
3. delay.
59 Accordingly, she erred in the exercise of her discretion in refusing to extend time for compliance with the springing order. Accordingly, I also find that the exercise of her discretion miscarried in entering default judgment. I therefore uphold the appellant's appeal and make the following orders, namely:
1. Leave to appeal refused on grounds 1 and 5.
2. Leave to appeal granted grounds 2, 3, 4, 6 and 7.
3. The order of the magistrate refusing to extend time for compliance with the springing order be set aside.
4. In lieu thereof, time for compliance with the springing order be extended to 24 June 2014.
5. The order for default judgment be set aside.
6. The order for costs made on 29 August 2014 be set aside.
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