Delta Metallics Pty Ltd v King [2012] FCA 1119

Delta Metallics Pty Ltd v King [2012] FCA 1119

The application to set aside the default judgment was dismissed because, even assuming the first respondent had an arguable defence, the discretionary factors strongly weighed against relief: his authorised solicitors had sent a clear letter stating he would take no further steps and effectively inviting judgment; there was no evidence that the letter was based on instructions he could not properly give; delay could not be justified by the solicitors ceasing to act; and Delta would suffer serious prejudice because it had settled with or discontinued against other respondents after judgment was entered against him.

Jurisdiction
Australia
Judgment Date
09 October 2012
Procedural Posture
Application to Set Aside Default Judgment / Determination of the First Respondent's Application Made on 7 August 2012 Under R 39.05(a) of the Federal Court Rules 2011 (cth)
Outcome
The first respondent's application made on 7 August 2012 was dismissed; ordinary costs were ordered against the first respondent forthwith; indemnity costs were refused; the proceeding was adjourned for directions.
Legal Topics
['setting Aside Default Judgment' 'absence of Party' 'delay' 'prima Facie Defence' 'finality of Litigation' 'prejudice' 'indemnity Costs']
['civil Procedure' 'costs' 'trade Marks'] ['setting Aside Default Judgment' 'absence of Party' 'delay' 'prima Facie Defence' 'finality of Litigation' 'prejudice' 'indemnity Costs']

Case Brief

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Procedural Posture

Application to Set Aside Default Judgment / Determination of the First Respondent's Application Made on 7 August 2012 Under R 39.05(a) of the Federal Court Rules 2011 (cth)

Legal Issues

  1. 1 ['Whether the default judgment entered against the first respondent pursuant to the order made on 23 September 2011 should be set aside under r 39.05(a) of the Federal Court Rules 2011 (Cth).' 'Whether the first respondent should be granted an adjournment to obtain further evidence and because his legal representatives were unavailable.' 'Whether costs of the application should be ordered forthwith and whether indemnity costs should be awarded.']

Ratio Decidendi

The application to set aside the default judgment was dismissed because, even assuming the first respondent had an arguable defence, the discretionary factors strongly weighed against relief: his authorised solicitors had sent a clear letter stating he would take no further steps and effectively inviting judgment; there was no evidence that the letter was based on instructions he could not properly give; delay could not be justified by the solicitors ceasing to act; and Delta would suffer serious prejudice because it had settled with or discontinued against other respondents after judgment was entered against him.

Court Disposition

The first respondent's application made on 7 August 2012 was dismissed; ordinary costs were ordered against the first respondent forthwith; indemnity costs were refused; the proceeding was adjourned for directions.

Orders

  • ["The first respondent's application made on 7 August 2012 be dismissed." "The first respondent pay the applicant's costs of and incidental to the first respondent's application made on 7 August 2012, to be payable forthwith." 'The costs allowed under Order 20 of the Orders made on 23 September 2011 be payable...