Patek, M. v Lord Mayor, Councillors & Citizens of the City of Melbourne [1986] FCA 35

LADISPCE DS

Judgment - setting aside - applicant railing to appear on trial

espondent solicitor retusing to cansent £9 adjournment - applicant allegedly

applicant $s solicitors declining to act turcnear -

surtering trom stress - judgment pronounced for

o Fs

respondent

matters to be taken into account on motion to seat asiae wdement.

Srimshaw v. Dunbar C1353] 1 .

3.8. 408 at ¢lo Evans v. Bartiam C1937] A.C. 4:3 at 46u, 489 Rosing v. Ben shemesh Cloybud V.R. 173 at L7o9-L77

MICHAEL SATEF v. LOPD MAYOR, CoUMeIDL083 snp CITISENS

OF MELSBUURNS

NO, ViG14B of LOd4

Jenkinson J. 20 February 1986 Melbourne

IN THE FEDERAL COURT OF AUSTRALTA ) VICTORIA DISTRICT REGISTRY ) NO. VG148 of 1984 )

GENERAL DIVISION

BETWEEN: MICHAEL PATEK

Applicant

AND: LORD MAYOR, COUNCILLORS AND CITIZENS OF THE CITY OF MELBOURNE

Respondent

CORAM: Jenkinson d. PLACE: Melbourne DATE: 20 February, 1996

REASONS FOR JUDGMENT

Motions to set aside judgments pronounced after trial of

a proceeding and cross-claim.

The applicant failed to appear when the proceeding and cross-claim were called on for trial on 11 November 1985, on which day, after trial, judgment was pronounced for the respondent on the applicant''s claims and judgment was pronounced that the respondent recover $33,867.67 on the cross-claim against the

applicant. Notice of the motions to set aside those judgments was

filed on 17 December 1985.

The respondent granted a lease of a shop in the City Square of Melbourne for 6 months expiring on 8 February 1984. The

written lease was expressed to be to the applicant and Jeni Patek,

but it was executed only by the applicant and the respondent. The applicant alleges that the grant of the lease was in performance of an agreement partly in writing (being the lease) partly oral and partly to be implied, and that the respondent failed in breach of terms of that agreement to undertake divers activities calculated to attract prospective customers to the vicinity of the leased shop. The applicant alleges in the alternative that his taking the demise was induced by misrepresentations of an officer of the respondent concerning conditions which did, or which would, prevail in the vicinity of the shop and concerning the activities which the respondent would undertake in that vicinity. The misrepresentations are alleged to have been made fraudulently and to have constituted breaches of s.52 and s.53A of the Trade Practices Act 1974. The relief claimed 1n this proceeding by the applicant aincludes "an order declaring" the lease "void ab initio", or alternatively an order reducing the rent and other monetary obligations imposed by provisions of the lease, as well