ACN 057 690 034 Pty Limited v Wykrota [2020] NSWSC 1430

Supreme Court New South Wales

Medium Neutral Citation: ACN 057 690 034 Pty Limited v Wykrota [2020] NSWSC 1430 Hearing dates: 7 October 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Equity Before: Rees J Decision: Dismiss motion to set aside judgment as made irregularly, against good faith or in the absence of the first defendant, with costs. Catchwords: LEGAL PROFESSION – duty of candour – undefended hearing – principles at [83], [91] – no breach of duty – trial judge not misled. SET ASIDE JUDGMENT – building contract –problems getting occupation certificate – damages sought from builder including loss of rent – first defendant appeared in person on occasion – 12 directions hearings – no appearance at final hearing – aware of hearing – unsatisfactory medical certificate – inadequate explanation – experienced litigant – access to legal advice – writ of execution registered against first defendant's property – property sold and judgment sum paid into court – application to set aside judgment, being 18 months after judgment. JUDGMENT IRREGULARLY OBTAINED – r 36.15 UCPR – principles at [3]-[7] – whether admissions arising from failure to file defence provided basis for judgment – imperfect pleading against multiple defendants – admissions by first defendant founded judgment against him – whether damages awarded outside pleaded case – damages sought notified to first defendant in schedule of damages – no misconduct or dishonourable conduct by plaintiff –failure to accord procedure fairness no basis to set aside judgment (nor such unfairness here). JUDGMENT IN ABSENCE OF PARTY – r 36.16 UCPR – principles at [8]-[12] – inadequate explanation for failure to attend – significant delay in bringing application – inadequate explanation for delay – little proffered to reduce hardship of judgment creditor – second defendant now deregistered – plaintiff took large discount in its claim before trial judge in order to finalise proceedings and only the judgment amount secured – offers in respect of plaintiff's legal costs parsimonious – arguable defence – not unjust to let judgment stand. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 91(2),101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.16(2)(b) Cases Cited: Acclaim Holdings Pty Ltd v Vlado [1989] 1 WAR 128 ACN 057 690 034 Pty Limited v Wykrota [2019] NSWSC 197 ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 Alexander v Ajax Insurance Co Ltd [1956] VLR 436 Anlaby v Praetorius (1888) 20 QBD 764 BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367; (2019) 375 ALR 159; [2019] NSWSC 1086 Burrell v R (2008) 238 CLR 218; [2008] HCA 34 Coles v Burke (1987) 10 NSWLR 429 Collie v Merlaw Nominees Pty Limited [2003] VSC 424 Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Daly v Silley [1960] VR 353 Day v Sternhell [2020] NSWSC 513 Deputy Commissioner of Taxation v Tabuso (2013) 94 ATR 343; [2013] NSWSC 688 DJL v Central Authority (2000) 201 CLR 226 Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80 Kavia Holdings Pty Ltd v Werncog Pty Ltd [1999] NSWSC 839 Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 Miltonbrook Pty Limited v Westbury Holdings Kiama Pty Limited (2008) 71 NSWLR 262; [2008] NSWCA 38 Northey v Bega Valley Shire Council [2012] NSWCA 28 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Pham v Gall [2020] NSWCA 116 Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 White v Weston [1968] 2 QB 647 Zakaria v Dr Noyce [2012] NSWSC 981 Texts Cited: G E Dal Pont, Lawyers' Professional Responsibility (6th ed, 2017, Law Book Company) Category: Principal judgment Parties: ACN 057 690 034 Pty Limited (Plaintiff) Mick Wykrota (First Defendant) Arrowfab Pty Limited (Second Defendant) Arrowcon Construction Pty Limited (Third Defendant) Representation: Counsel: Mr EC Muston SC / Mr S Jayasuriya (Plaintiff) Mr JM Ireland, Solicitor (First Defendant)