Wilson v Lesteri

[2011] WADC 120

WILSON -v- LESTERI [2011] WADC 120

Last Update:  09/08/2011

WILSON -v- LESTERI [2011] WADC 120
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 120
Published:	03/08/2011
Case No:	APP:23/2011	Heard:	18 JULY 2011
Coram:	STAUDE DCJ	Delivered:	18/07/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed Leave to defend granted
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SANDRA WILSON PUSPA LESTERI
Catchwords:	Appeal Appeal from order dismissing application to set aside default judgment Breach of rules of natural justice
Legislation:	Magistrates Court (Civil Proceedings) Act 2004
Case References:	Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : WILSON -v- LESTERI [2011] WADC 120 CORAM : STAUDE DCJ HEARD : 18 JULY 2011 DELIVERED : 18 JULY 2011 FILE NO/S : APP 23 of 2011 BETWEEN : SANDRA WILSON

Appellant

AND

PUSPA LESTERI
Respondent

Catchwords:

Appeal - Appeal from order dismissing application to set aside default judgment - Breach of rules of natural justice

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal allowed
Leave to defend granted

(Page 2)

Representation:

Counsel:

Appellant : In person
Respondent : In person

Solicitors:

Appellant : Not applicable
Respondent : Not applicable

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

Nil

(Page 3)

1 STAUDE DCJ: [This judgment was delivered extemporaneously on 18 July 2011 and has been edited from the transcript.]

Introduction

2 The appellant, Mrs Wilson, is the defendant in a minor case claim brought by the respondent, Ms Lesteri, in the Magistrates Court of Western Australia at Fremantle, case number 1596 of 2010. Ms Lesteri's claim was for the sum of $600 plus costs of $135.05. Ms Lesteri's claim was stated to be as follows:

Claimant and defendant entered into a lodging agreement on 25 July 2010. Four weeks into the agreement, the defendant terminated the agreement by handing the claimant an eviction notice. Defendant refuses to refund security bond of $600 to claimant. Claimant seeks return to $600 security bond and allowable costs from defendant.

3 Mrs Wilson entered a notice of intention to defend the claim and in due course, the matter was set down for a pre trial conference at the Magistrates Court at Fremantle at 11.15 am on 1 February 2011. The parties were required to attend the pre-trial conference in person.

4 When the matter was called, there was no appearance by Mrs Wilson and the presiding registrar entered a judgment in default of her appearance in the amount of $735.05.

5 On the same day, an application was made by Mrs Wilson to set aside the default judgment. That application was supported by an affidavit which has two pages and in that affidavit, Mrs Wilson stated:

I was awaiting the pre-trial hearing. I heard my name called, but could not see the caller as she had left the doorway and could not be seen. I then searched all the rooms, but found after further inquiries that the hearing…