The importance of engaging the right solicitor: A note from the Supreme Court of Western Australia

The recent decision of the Supreme Court of Western Australia Commonwealth Bank of Australia v Dinh¹ is an important reminder to ensure you engage a solicitor who has the necessary expertise required to handle your matter efficiently.

Background

Commonwealth Bank of Australia (the plaintiff) commenced an action against Mr Dinh and Mrs Dinh (the second defendant) seeking the possession of four properties Mr Dinh and the second defendant jointly owned. On 10 February 2015, default judgment was entered against Mr Dinh who was declared bankrupt.  After multiple failed mediation attempts between the plaintiff and the second defendant, the plaintiff filed a motion (the Motion) for judgment against the second defendant pursuant to Order 41 of the Rules of the Supreme Court 1971 (WA) (RSC).

On 12 July 2018, the plaintiff’s solicitors served the Motion on the second defendant’s solicitors. The Motion was listed to be heard at a directions hearing on 18 July 2018. The second defendant was not represented at the hearing and did not appear.  Archer J refused to hear the motion and ordered the second defendant to comply with previous court orders that were yet to be complied with and re-listed the Motion for further hearing on 5 September 2018.

During this time, the plaintiff’s solicitors emailed the second defendant’s solicitors a copy of the associates record, a transcript of the proceedings and a letter foreshadowing the plaintiff would be moving for judgment on 5 September 2018.  The second defendant did not comply with the orders made on 18 July 2018 and did not appear at the hearing listed for 5 September 2018.

The Motion was granted on 5 September 2018 based on the following conclusions by Archer J:

• the second defendant’s solicitors had been advised of the Motion and its hearing date;
• there was no defence to the plaintiff’s claims;
• the required evidence to be filed by the plaintiff had not been filed; and
• the second defendant did not appear at the hearing for the Motion and did not provide any reasons to oppose it. 

On 20 September 2018, a notice of change of representation was filed on behalf of the second defendant. The plaintiff then applied to the Supreme Court for an order to set aside a judgment under Order 34 Rule 3 of the RSC which gives the Court the power to set aside a judgment obtained where one party does not appear at trial.

Decision

The parties agreed the relevant factors to be considered for an application of this nature are established in Bevan v Bevan,² these include the review of:

• the reason why the party did not attend;
• whether there were any delays in bringing the action;
• whether some useful purpose would be served by setting aside the judgment, requiring an analysis of the merits of the case;
• the injustice of the applicant if the judgment is not set aside; and
• the injustice to the respondent if the judgment is set aside.

Upon consideration of the factors above, Archer J granted the application to set aside the judgment, concluding:

• the second defendant’s previous solicitors did not act promptly, did not keep her informed and did not advise her of the hearing in September 2018;
• the second defendant’s current solicitors failed properly to progress her application to set aside the judgment;
• setting aside the judgment would serve as a useful purpose because the second defendant has an arguable basis on which she could defend the plaintiff’s claims; and
• the second defendant would suffer significant injustice if the judgment is not set aside.

Lavan Comment

Litigation can be a costly and time-consuming exercise if not undertaken efficiently, it is therefore imperative to ensure you have a solicitor who has the appropriate skill and expertise for your matter. 

If you have any questions regarding litigation or would like to speak with someone about a matter you may require assistance with, please contact Lavan’s experienced Litigation and Dispute Resolution team.