Rohde v Markham-David

The default judgment obtained by the builder enforcing the adjudicator's decision in the absence of the employer acknowledging service of the enforcement proceedings should be set aside

Technology and Construction Court
Jackson J
20 March 2006
The employer worked at a quarry and the builder he engaged for the renovation works of his property carried out work at the quarry for him. The employer's marriage broke down and he and his wife moved to different properties. The marital home was let to tenants. Disputes arose between the builder and the employer which were referred to adjudication. During the course of the adjudication various communications were sent to the marital home but were returned as undelivered. The adjudicator awarded the builder a specified sum of money. The builder commenced proceedings for the enforcement of the sum awarded. The builder obtained a court order for service of the proceedings by the alternative method of service by process agents to a person appearing to be in occupation of the marital home with a further copy of the documents to the address at which the employer's ex-wife was living. The proceedings were duly served in accordance with the order but the employer did not respond or acknowledge service. A default judgment was obtained by the builder which was not enforced. Some three years after the default judgment was obtained the employer applied to the court to have the judgment set aside.
Jackson J held that the judgment should be set aside on the basis that (1) the employer had available to him a defence to the enforcement of the decision with a real prospect of success, namely that the builder had a ready means of contacting the employer which he chose not to use or to communicate to the adjudicator during the adjudication in breach of the rules of natural justice, and that (2) the court should exercise its discretion to set aside the judgment in the light of that defence by reason of the employer having made his application to set aside reasonably promptly and of the likely prejudice to the builder by the judgment being set aside being less than that to the employer of the judgment standing. If it turned out after hearing the evidence in this connection that the builder took a deliberate decision which deprived the employer of the opportunity to make representations in the adjudication, this might constitute one of those rare and exceptional cases in which the court would decline to enforce a decision by reason of breach of the rules of natural justice. However, this issue would not be decided until the trial.