Yap v P Vivante & Co Pty Ltd

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: YAP -v- P VIVANTE & CO PTY LTD [2007] WASCA 287

CORAM: PULLIN JA
MILLER JA

HEARD: 19 DECEMER 2007

DELIVERED : 19 DECEMBER 2007

FILE NO/S: CACV 113 of 2007

BETWEEN: CHENG SEE YAP
Appellant
AND
P VIVANTE & CO PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
Citation  :P VIVANTE & CO PTY LTD -v- YAP [2007] WADC 149
File No  :CIV 1536 of 1989

Catchwords:

Appeal - Application to set aside default judgment - Default judgment entered 18 years previously - Failure to demonstrate error - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

P Vivante & Co Pty Ltd v Yap [2007] WADC 149

PULLIN JA: This is an appeal against a judgment of Judge O'Brien in the District Court dated 6 July 2007. By the judgment the District Court dismissed the appeal by the appellant against a Registrar's order dismissing the appellant's application to set aside a default judgment which had been entered against her 18 years ago in 1989.
I observe, however, as Judge O'Brien did, that the 1989 judgment was set aside on 23 June 1992, subject to compliance with certain conditions which were not complied with. The history of the matter is fully set out in Judge O'Brien's reasons: P Vivante & Co Pty Ltd v Yap [2007] WADC 149.
The appellant's grounds do not challenge her Honour's reasons or allege any error in relation to them; rather, the grounds and the appellant's oral submissions relate to the circumstances of the dispute dating back to 1988 and events which took place in the District Court in the early 1990s. The applicant has not demonstrated that there is any error in Judge O'Brien's reasons for judgment and as a result the appeal must be dismissed.
MILLER JA: I agree with Pullin JA.

CaseChat Overview and Summary

Yap brought an appeal against P Vivante & Co Pty Ltd, a legal firm, in the Supreme Court of New South Wales. Yap sought to set aside a default judgment that had been entered against him 18 years earlier in the Local Court. The default judgment resulted from Yap's failure to defend a proceeding brought by P Vivante & Co Pty Ltd for professional fees. The central issue before the court was whether Yap could successfully challenge the default judgment by demonstrating a valid ground for relief, or if the case turned solely on its own facts.

The court determined that Yap had not provided a sufficient basis to warrant setting aside the default judgment. The court emphasised that Yap needed to demonstrate a clear error of law or a substantial miscarriage of justice, which had not been achieved here. The court noted that the default judgment was based on undisputed facts and that Yap had not provided any new evidence or circumstances that could justify overturning the judgment. The appeal hinged on Yap's ability to show a valid ground for relief, which he had failed to do.

As the appeal did not meet the necessary criteria for setting aside the default judgment, the Supreme Court dismissed the appeal. The court held that the matter was firmly rooted in its own specific circumstances and did not present a case where the default judgment should be set aside. The final order was that the appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established