Bidvest v McKenzie [2000] NSWSC 209

New South Wales Supreme Court

CITATION : Bidvest v McKenzie [2000] NSWSC 209 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20309/99 HEARING DATE(S) : 15 March 2000 JUDGMENT DATE : 23 March 2000

Bidvest Australia Limited (Plaintiff) PARTIES : Peter John McKenzie t/as Specialised Installation Services (Defendant) JUDGMENT OF : Master Harrison

Mr N Francey (Plaintiff) COUNSEL : Mr S Habib (Defendant) Mr Stephen Moss McCabes SOLICITORS : (Plaintiff)

Turtons (Defendant) LEGISLATION CITED : Supreme Court Rules - s 40 r 9 Law Reform (Miscellaneous) Act Evans v Bartland (1937) AC 473 at 489 Vacuum Oil Pty Limited Stockdale (1942) 42 SR 239 CASES CITED : Cuttle v Brand (1947) 64 WN 96 Cohen v McWilliam (1995-96) 38 NSWLR 476 at 481 Storey v John (NSWCA, unreported 8 December 1997) DECISION : See para 23

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 23 MARCH 2000

20309/99 - BIDVEST AUSTRALIA LIMITED v PETER JOHN McKENZIE t/as SPECIALISED INSTALLATION SERVICES

JUDGMENT (Set aside default judgment)

1 MASTER: By notice of motion filed 13 December 1999 the defendant seeks firstly that judgment entered against him on 15 September 1999 be set aside or alternatively that the proceedings be stayed. The second order is not pressed. The defendant relied on his affidavits sworn 12 December 1998 and 17 February 2000 and the affidavits of Danikka White sworn 16 February 2000 and John Kikilas sworn 1 February 2000. The plaintiff relied on the affidavits of Stephen John Moss sworn 25 January 2000 and 28 February 2000 and James Stephen Twigg sworn 27 January 2000 and 2 March 2000. All of the defendant's deponents were cross examined. 2 Default judgment was entered on 15 September, 1999. The notice of motion to set aside the default judgment was filed on 13 December, 1999. There has been a delay of nearly three months. 3 The statement of claim was filed on 8 July, 1999. It alleges that the plaintiff is the owner of a warehouse and office complex at Rozelle. The defendant was a boilermaker and engineer carrying on business under the name of Specialised Installation Services. It is alleged that in August, 1998 the Plaintiff and the defendant entered into an agreement whereby the defendant remove a refrigeration plant and the plaintiff would pay the defendant the sum of $38,000.00. On 14 August, 1998 during the course of the work and during the use of a oxy-acetylene torch to remove old pipes and the refrigeration equipment from the premises , a fire started which quickly spread through the premises. It is alleged that the defendant was negligent . The plaintiff claims damages of $800,000.00.