WRAY v BERNACKI CONSTRUCTIONS PTY LTD [1990] NSWCA 190

WRAY v BERNACKI CONSTRUCTIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 12 February 1990, 15 June 1990

[1990] NSWCA 190 Mahoney JA I agree with the judgment of Clarke JA.

Priestley JA I agree with Clarke JA's reasons for thinking there was an error of law in the reasons of Downs DCJ.

I also agree that those reasons appear on the face of the record, but think it useful to add that in my view authority in this court, in particular GJ Coles v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 takes the matter of what the record may be farther than it was taken in Glenville Homes Pty Ltd v Builders Licensing Board (1981) 2 NSWLR 608. I have given my reasons for this opinion in Commissioner for Motor Transport v Kirkpatrick (1988) 3 NSWLR 368 at 387-393.

In my opinion the orders suggested by Clarke JA should be made.

Clarke JA On 26 September 1986 the claimant, the defendant in the court below, and the first opponent entered into a written agreement whereby the first opponent agreed to erect a dwelling house for the claimant on land owned by her. Following the entry into the agreement the first opponent constructed the house and on 21 August 1987 it provided the claimant with a notice of practical completion. The claimant did not, however, make the final payments due under the agreement, apparently because she disputed the quality of the workmanship, and on 7 April 1988 the first opponent filed a statement of liquidated claim in the district court. No defence was filed in answer to that claim and, the first opponent having tendered proof of service of the statement of claim, it entered default judgment against the claimant on 21 June 1988. Subsequently it issued a bankruptcy notice which was served on the claimant on | July 1989.

On 28 July 1989 the claimant filed a notice of motion in the District Court seeking that the default judgment be set aside and that she be allowed to file a defence and a cross-claim. This motion was heard by Downs DCJ on 25 August 1989 and at the conclusion of the evidence and submissions his Honour dismissed the motion and ordered the claimant to pay the first opponent's costs.