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Judgment handed down in Carron Investments Pty Ltd and George Lang and Anor

24 November 2016

The Court of Appeal today dismissed an appeal by Carron Investments Pty Ltd against a decision to set aside a default judgment entered by the Magistrates’ Court Registry in 1999.

Carron Investments commenced proceedings against Mr Lang in 1997 for alleged rental arrears. Mr Lang failed to enter an appearance and the Magistrates’ Court Registry entered a judgment in default in April 1999. The affidavit of service provided by Carron Investments with its application for default judgment noted service of the complaint upon Mr Lang but made no reference to service of the Form 1 notice required under the Service and Execution of Process Act 1992 (Cth) for interstate service.

It was not until 2013 that efforts were made by Carron Investments to enforce the default judgment in its favour. In 2015, Mr Lang applied to have the default judgment set aside on the basis of an irregularity in the affidavit of service. The magistrate chose not to set aside the default judgment and made a finding of fact that the Form 1 notice had been served. An associate judge of the Supreme Court reviewed the magistrate’s decision and concluded it was beset by unreasonableness. The associate judge ordered that the default judgment be set aside.

The Court of Appeal dismissed the appeal from the associate judge’s decision, agreeing that the magistrate’s decision not to set aside the default judgment had been unreasonable. This was because, regardless of the magistrate’s subsequent finding of fact, the Registry at the time of entering default judgment did not have evidence of valid service. Such evidence was required by the Magistrates’ Court Civil Procedure Rules 1989 to empower the Magistrates’ Court Registry to enter default judgment.
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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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