- Unreported Judgment
COURT OF APPEAL
Appeal No 3004 of 2017
SC No 5910 of 2008
JABAMAW INVESTMENTS PTY LTD Respondent/Applicant
ACN 104 504 903
ELAINE JOY RENAUD Appellant/Respondent
THURSDAY, 8 JUNE 2017
FRASER JA: The respondent to this appeal has applied for orders that the appellant supply security for the respondent’s cost of the appeal in the amount of $25,000 by payment into Court, and that the respondent have liberty to apply in the event of non-compliance with the order, and for further orders. The appeal is from a judgment of a judge in the trial division refusing the appellant’s application to set aside a judgment against the appellant which had been entered in default.
The default judgment was entered in September 2008. The plaintiff’s claim was a money claim owing under what was alleged to be a written guarantee signed by the appellant and duly witnessed. The claim also relied upon what was alleged to be an acknowledgement made in September 2005 by the appellant of the moneys due and owing by the appellant to the respondent.
The appellant’s failure to appear was referable to the fact that, although an Australian citizen apparently, she had left Australia in January 2005. The proceedings against her were served by way of compliance with orders for substituted service. The primary judge found that the proceedings and the judgment came to the attention of the appellant’s former solicitors. It was found that there was no reason to doubt that the order permitting the documents be served on the former solicitors were, in fact, served on them.
At the hearing in the trial division, the appellant’s explanation for her omission to defend the proceedings was that she had no knowledge of them until 2012 when she served with proceedings brought in Switzerland for the enforcement of the Queensland judgment as a foreign judgment. There has been other litigation overseas as well. The appellant also referred to her own poor health, but the primary judge referred to material establishing that the appellant was in fact well enough to travel and had travelled overseas.
In September 2015, the appellant filed an application to set aside the default judgment, but she did not support the application by any affidavit. The primary judge also found that the application was not served on the respondent. It was simply adjourned and lay dormant. A period of some 18 months passed, during which the appellant did not prosecute her application to set aside the judgment.
The primary judge made findings about the merits of the appellant’s suggested defence to the claim, finding that it was a shadowy one. The primary judge went on to find that even if the proposed defence was stronger than assessed by the primary judge, the primary judge would not exercise the discretion to set aside the default judgment. The primary judge explained that after the appellant found out that judgment had been entered against her, she made a considered choice many years ago not to set it aside, and the result of that choice was to put the respondent to great expense in seeking to enforce the judgment overseas.
Seven and a-half years after the judgment was entered, the appellant finally brought on her application to set it aside. For those discretionary reasons, involving great and unexplained or poorly explained delays by the appellant, the sentencing judge would not have acceded to the application to set aside the regularly entered judgment.
The appeal by the appellant appears to be based upon propositions that, in the course of those proceedings, the primary judge made incorrect findings about the merits of the proceeding. Putting that question aside, the discretionary considerations relied upon by the primary judge appear, on their face, to be very powerful.
In the circumstances, on the material before me my provisional view is that the appeal would appear to have poor prospects of success.
The solicitors for the appellant applied this morning for leave to withdraw from the record, on the ground that they did not have further instructions. I granted that application. The result is that the respondent is faced with an appellant who is now unrepresented, lives overseas, has ceased to instruct her solicitors, and has not given an address for service, notwithstanding notice to do so by her former solicitors.
In these circumstances, the discretionary reasons for ordering security are overwhelming. Furthermore, having regard to the factors mentioned, it is an appropriate case to order that in default of providing security by a date I will fix, the appeal should be struck out with costs.
I order that the appellant provide security in a form satisfactory to the registrar for the respondent’s costs in the appeal in the amount of $20,000 by 29 June 2017. I order that if the security is not supplied by 4 pm on 29 June 2017, the appeal be dismissed with costs.
A further question has arisen as to how the respondent might serve the appellant with a further interlocutory application in these proceedings. In the affidavit sworn by Mr Robert Cook Aitken, the former solicitor for the appellant, Mr Aitken referred to the email communications he had had with his former client, the appellant. It appears from those email communications that the appellant is currently monitoring and using an email address: email@example.com. I am satisfied by the material that service of notice of an application at that email address is very likely to come to the attention of the appellant. I am also satisfied that it is very difficult, indeed, impractical, for the respondent to serve an interlocutory application in this appeal, otherwise than by service at that email address.
I order that any application in this appeal which the respondent wishes to serve before 4 pm on 6 July 2017 may be served by sending a copy of it by email to firstname.lastname@example.org and that delivery of the email to that email address will be deemed proper service of the application under the rules.
I order that the appellant pay the respondent’s costs of the application for security for costs.
- Published Case Name:
Jabamaw Investments Pty Ltd v Renaud
- Shortened Case Name:
Jabamaw Investments Pty Ltd v Renaud
 QCA 120
08 Jun 2017
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