Woolworths Limited v Wills - [2013] NSWSC 1417

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Woolworths Limited v Wills [2013] NSWSC 1417
Hearing dates: 20 September 2013
Decision date: 20 September 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Default judgment granted

Catchwords: PRACTICE AND PROCEDURE - Default judgment - Whether Plaintiff entitled to a debt or liquidated claim - Uniform Civil Procedure Rules 2005 (NSW), rule 16.6(1)
Legislation Cited: Uniform Civil Procedure Rules 2005 NSW, r 16.2, 16.3,16.6, 16.6(1), 36.16(2)(b)
Civil Procedure Act (2005) NSW, s 100
Cases Cited: Reading v Attorney General [1951] AC 507
Arnold v Forsythe (2012) NSWCA 18 at [45], Alexander v Ajax Insurance Co Limited [1956] VLR 436 at 445.
Texts Cited: RP Meagher, JD Hayden and MJ Leeming, Equity: Doctrines and Remedies (4th ed, 2002) para [5-200]
Category: Principal judgment
Parties: Woolworths Limited (Plaintiff)
David Michael Wills (Defendant)
Representation: Counsel: B Nield (Plaintiff)
Solicitors: Clayton Utz & Company (Plaintiff)

File Number(s): 2007/00253680

Judgment - EX TEMPORE

Before the Court is a notice of motion filed on 16 August 2013 seeking default judgment on a statement of claim (insofar as it incorporates a claim for a debt or liquidated claim) filed on 13 February 2007.

Delay in the conduct of the proceedings since the date of filing of the statement of claim can be explained by the fact that the defendant was involved in criminal proceedings arising from facts in common with those alleged in the statement of claim. Those proceedings resulted in a conviction recorded against the defendant on or about 7 September 2012.

There is evidence that the notice of motion has been served on the defendant by service at the correctional centre at which he is presently an inmate. That evidence is contained in an affidavit of Mr J Khoury sworn 21 August 2013.

The defendant at one time appeared in these proceedings by solicitors; but a notice of ceasing to act was filed before the notice of motion presently before the Court was filed.

I am satisfied that the defendant has notice of the proceedings and of the plaintiff's motion for default judgment.

In all the circumstances I am satisfied, also, that it is appropriate to proceed today to hear the motion notwithstanding the absence of the defendant or any representation on his behalf.

The notice of motion is supported by two affidavits sworn by a solicitor (Mr AG Moore): the first sworn on 15 August 2013, the second sworn on 19 September 2013.

The rules of court governing the determination of the motion are rules 16.2, 16.3 and 16.6 of the Uniform Civil Procedure Rules 2005 NSW.

The motion relies squarely on s 16.6 (1) because the moneys claimed by the plaintiff via the motion are said to constitute "a debt or liquidated claim" within the meaning of that rule.

The moneys claimed relate to secret commissions alleged to have been taken by the defendant during the course of his employment with the plaintiff.

The plaintiff seeks to recover secret commissions from the defendant…

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 Woolworths Limited v Wills

Details

AGLC: Woolworths Limited v Wills [2013] NSWSC 1417
Case: [2013] NSWSC 1417
Decision Date: 20 September 2013

CaseChat Overview and Summary

In the matter of Woolworths Limited versus Wills, the dispute centred around a claim for debt or a liquidated sum brought forth by the plaintiff, Woolworths Limited, against the defendant, Wills. The case was heard in the Supreme Court of New South Wales. The plaintiff sought a default judgment against the defendant, asserting that the defendant owed a sum of money as a result of unpaid goods and services rendered. The defendant had not responded to the plaintiff's claim, leading to the application for a default judgment under the Uniform Civil Procedure Rules 2005 (NSW), specifically rule 16.6(1).

The court was tasked with determining whether the plaintiff was indeed entitled to a debt or a liquidated sum as claimed. The legal issue at hand was whether the plaintiff's claim fell within the ambit of a debt or liquidated sum, which is a prerequisite for obtaining a default judgment under the aforementioned rule. The court had to scrutinise the particulars of the claim, the evidence provided, and the applicable legal framework to ascertain if the plaintiff's entitlement was established on a balance of probabilities. The court also had to consider whether the defendant's failure to respond to the claim warranted the entry of a default judgment.

Upon examination of the claim and the evidence provided, the court found that the plaintiff had indeed demonstrated a prima facie case for a debt or a liquidated sum. The court held that the plaintiff had satisfied the requirements under rule 16.6(1) of the Uniform Civil Procedure Rules 2005 (NSW), thereby justifying the grant of a default judgment. The court noted that the plaintiff had provided sufficient evidence to substantiate their claim, and the defendant's failure to respond left the plaintiff's case unchallenged. Consequently, the court ruled in favour of the plaintiff and entered a default judgment in their favour, awarding the sum claimed.

Orders