Adelaide Timber Floor Pty Ltd v Pullin - [2020] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ADELAIDE TIMBER FLOOR PTY LTD v PULLIN
[2020] SADC 158
Judgment of Her Honour Judge Deuter
13 November 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Application for a Minor Civil Review. The Magistrate dismissed an application to set aside a default judgment in relation to a claim for the cost of rectification works to damaged floorboards in the respondent's home. The Magistrate found that the applicant did not have a reasonable excuse for not filing a defence and did not have a reasonable basis for defending the claim.
Held:
1. The Magistrate failed to consider that the judgment was irregularly obtained as the respondent had sought that judgment be obtained for a liquidated sum. Respondent's claim is not a liquidated claim but a claim for repairs not yet performed. Any damages must be assessed by the court.
2. The applicant had a reasonable excuse for failing to file a defence.
3. The applicant has a reasonable basis for defending the claim both on liability and in relation to the assessment of damages.
Orders:
1. Application for Review allowed.
2. Judgment entered against the respondent is set aside.
3. The action is remitted to the Adelaide Magistrates Court for hearing before another Magistrate.
Magistrates Court Act 1991 s 38; Uniform Civil Ruels 2020 Rules 142.2, 142.11, 142.12; Magistrates COurt (Civil) Rules 2013 R 521(1)(d), 60, referred to.
Spain v Union Steamship of NZ Ltd (1923) 32 CLR 138; Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210; Watson v Anderson (1976) 13 SASR 329; Marmandis v Germein [2017] SASC 103; Living Australia Ltd v Rans Consulting Pty Ltd [2019] SASC 86, considered.

ADELAIDE TIMBER FLOOR PTY LTD v PULLIN
[2020] SADC 158
Introduction

This is an application to review a decision of Magistrate Schulz delivered on 29 July 2020 where she dismissed an application to set aside a default judgment entered in favour of the respondent. The applicant failed to file a defence by the time required under the then applicable Magistrates Courts (Civil) Rules 2013 (‘MCR’) and as a result a default judgment was entered for the respondent in the sum of $11,500 plus costs of $153.00 (‘the judgment’).
The judgment relates to flooring works carried out at the respondent’s home at Prospect (‘the respondent’s home’). That work was performed pursuant to a quote provided by the applicant to carry out remedial works to Baltic pine flooring in the front area of the respondent’s home. Those works were to include sanding and applying a new surface coating. After the flooring works had been completed the respondent raised a concern regarding the quality of work and particularly the extent to which the floor boards had been sanded and damaged leaving the area un-safe to walk on. The respondent obtained a report from a building consultant, Mr Paul Effingham dated 12 October 2017, whereby he set out in detail multiple issues with the work that had been performed by the applicant. He made recommendations regarding rectification works required to ensure that the floor boards in the hallway and dining room were returned to an aesthetic and safe state. A quotation assessing those rectification works was provided by S T Builders on 16 July 2020. The cost of the required rectification works was quoted at $13,751.90.
A minor civil action claim was commenced by the respondent on 23 April 2020, and posted for service on 24 April 2020 to the applicant’s business address, 138 Magill Road, Norwood. By this claim the respondent requested that the Court assess her damages at $11,500.00. Pursuant to Rule 52(1)(d) of the MCR, where a document is served in accordance with the Rules, including by pre-paid post, then the document is taken to be served four business days after the document is posted (29 April 2020). Rule 60 of the MCR provided that a defence must be filed within 21 days of service, not taking into account the day on which the party was served. The Magistrate calculated that in the circumstances the applicant should have filed its defence on or about 21 May 2020. That did not occur and on 28 May 2020 the respondent filed a Form 76B seeking a judgment in default be entered for a ‘liquidated sum’ of $11,653.00.[1] On 29 May 2020 the Court recorded the Judgment sought.[2]
[1] Action: ELCC1-20-3323 (FDN 3).
[2] Action: ELCC1-20-3323 (FDN 4).
On 10 June 2020, the applicant applied to have the judgment set aside. This application came before the Magistrate on 1 July 2020 and then 29 July 2020. Both affidavit and oral evidence was given by the applicant.
The application to set aside the judgment was considered pursuant to the new Uniform Civil Rules 2020 (‘UCR’) that came into effect on 18 May 2020. Rule 142.12 of the UCR provides as follows:
(1)     A party may apply under this rule to set aside or vary a judgment in default of defence on the ground that—
(a)     the Claim documents or Cross Claim documents did not come to the attention of that party or the party has another reasonable excuse for not having filed a defence; and
(b)     the party has a reasonable basis for defending the claim.
(2)     If the Court is satisfied that both grounds in subrule (1) are established, the Court may set aside the default judgment on such conditions as it thinks fit.
The Magistrate in considering the application to set aside the judgment, noted there was no assertion that there had been any irregularity in the judgment having been obtained. She did not consider the issue of irregularly further. She noted that Rule 142.12 provided the court with a discretion to set aside a default judgment regularly obtained, but only if the court is satisfied of the two matters set out in subrule (1)(a) and (b).
Magistrate Schulz, having considered all the evidence, found that she was not satisfied that the applicant had a reasonable excuse for not having filed a defence and on that basis alone the application should be dismissed. However, she went on to find that she was also not satisfied that the applicant had a reasonable basis for defending the claim and dismissed the application to set the judgment aside.
The application in the Magistrates Court
The Application to set aside the judgment was brought by the sole director of the applicant, Mr Peter Kozno. In a very brief affidavit of 10 June 2020,[3] Mr Kozno stated that due to some health issues and the impact of COVID-19 he missed the deadline to file a defence by a week and a half. He also argued that the respondent’s claim was unjust, as his company had not been paid for the work that they had performed at her home.
[3] Action: ELCC1-20-3323 (FDN 6).
On 1 July 2020 when Mr Kozno appeared before Magistrate Schultz she set out before him the two matters that needed to be addressed pursuant to Rule 142.12 and granted leave for a further affidavit to be filed, setting out the reasons why the applicant asserted that it had a reasonable excuse for not having filed a defence, and annexing a draft defence.
Mr Kozno swore a further affidavit on 17 July 2020[4] whereby he attested to the fact that ‘he had not seen’ the respondent’s Minor Civil Action – Claim[5] until about mid-May. He then anticipated that he had 21 days to respond. His focus however had been on a personal health matter, and his life was also complicated by COVID- 19 issues, including the need to look after his family and staff, and to run his business. He also attested to the fact that when he had attempted to respond to the claim through the new Courts SA portal at or about the time of the deadline, he had difficulty leading to him losing a few further days and meaning that he had to find time to attend at the Adelaide Magistrates Court.
[4] Action: ELCC1-20-3323 (FDN 9).
[5] Action: ELCC1-20-3323 (FDN 1).
Mr Kozno did not file a draft defence as ordered, but simply set out a number of issues primarily around the fact that the applicant had not been paid for the work performed at the respondent’s home. He claimed that the work had been performed as per the quote, but that once damaged floorboards had been removed as part of the job it became clear that more work was required to complete the job properly. Mr Kozno stated that the respondent’s claim did not reflect the full extent of the issues between the parties and was incorrect in its allegations. He said that the report commissioned by the respondent did not refer to all of the issues between the parties or the differing positions taken by them.
The respondent filed an answering affidavit sworn on 23 March 2020[6] whereby she asserted that Mr Kozno had not established a reasonable excuse for him not filing a defence. She set out how for 2.5 years she had been chasing the applicant in relation to the cost of repairing the flooring and that a final notice was forwarded to the applicant on 16 February 2020.[7] The respondent argued that Mr Kozno had been on notice since that time of the likely issue of proceedings. Mr Kozno had also not provided any evidence of the alleged personal health matter which he alleged had prevented him filing a defence, or how COVID- 19 had affected him. In relation to the difficulty with the use of the on-line Courts SA portal the respondent said that Mr Kozno had provided no detail regarding the difficulty he had experienced, noting that the portal went live on 18 May 2020. The respondent’s position was that the applicant had ample time and opportunity to file a defence to a claim that he was well aware of.
[6] Action: ELCC1-20-3323 (FDN 10).
[7] Exhibit 1 of the affidavit of the respondent. (FDN 10).
Evidence at hearing
At the hearing before Magistrate Schultz, Mr Kozno on behalf of the applicant was asked to provide more detail as to how the claim document came to his attention. Mr Kozno’s response was:
…when I’d seen the mailed document I kind of put it aside thinking I had 21 days. I got to it about the deadline….[8]
[8] T2.27-29.
In relation to his health issues Mr Kozno gave evidence that he suffered from spasms in his back, approximately 2-3 times per year due to his work. About the time he was served with the proceedings he had attended upon a chiropractor, three times over two weeks for such spasms. When asked how the back condition had prevented him from filing a defence, Mr Kozno admitted it did not, but made life a bit more difficult for him. His evidence was:
… well basically what it does is – well, it doesn’t prevent anything other than makes life a bit more difficult. I can’t just do my normal - getting in and out of the car is more difficult therefore I fall behind in my work. Just about everything you do is a little bit different.[9]
[9] T3.34-T4.2.
In relation to the issues surrounding the COVID-19 pandemic Mr Kozno gave little further explanation beyond saying that it had meant that things had to be done ‘…a little bit differently…’[10] and that this affected his business and family activities. In general, things just took longer than normal.[11]
[10] T4.19.
[11] T4.27-28.
Magistrate Shultz put to Mr Kozno that given what was going on at the time it appeared that he did not prioritise filing a defence. Mr Kozno agreed that was the case.[12] Mr Kozno could not provide any further information in relation to his difficulties with the online portal of Courts SA although he did give evidence that he did try to telephone the court. He could not provide any detail of the exact dates when he had made those attempts. His evidence was:
…I rang up to try and locate the correct form to respond and also to get registered and we basically couldn’t get it done over the phone. I mean the instructions of what I was doing wasn’t working out….[13]
[12] T4.29-32.
[13] T5.25-28.
Mr Kozno gave evidence that given his difficulties with the registry he then made a time to go to court to lodge his defence, which he did on 10 June 2020. It was at that time that he became aware that the judgment had been entered.
In relation to his defence of the claim, Mr Kozno gave evidence that his defence was that he had not been paid for the work that had been done by the applicant. When questioned further by Magistrate Shultz, Mr Kozno said that the work performed for the respondent had been as per a quote and as per her instructions. He disagreed that the work had not been performed in a proper manner.
When cross-examined by the respondent, Mr Kozno confirmed that his back condition suffered at the time he had been served with the proceedings did not prevent him from working and carrying out his normal activities, and that responding to the claim had not been a priority for him.[14]
[14] T8.22-33.
Decision of the Magistrates Court South Australia – 29 July 2020
In relation to the first matter to be decided pursuant to Rule 142.12 of the UCR, Magistrate Shultz found in relation to whether the applicant had a reasonable excuse for not having filed a defence:
…it is clear to me from the evidence of Mr Kozno that he did not prioritise this matter and instead put it to one side to get to it later. There was a lot happening at the time and notwithstanding that, he did not prioritise this matter given that there was a 21 day deadline within which to respond to the claim or risk a default judgment. That is clearly set out on p. 2 of the claim where it states ‘defendants, if you have a defence or counterclaim you must within 21 days from service of this claim go to your nearest Court and file a defence or counterclaim. If you do nothing, the plaintiff may get a judgment against you’. That is what happened in this case.[15]
[15] Decision of Magistrate Schulz – paragraph 11.
Magistrates Shultz continued as follows:
We have all been operating under difficult circumstances during 2020 but the consequences of not attending the court within 21 days of service of the claim, as I have noted, are clearly set out and the end of the claim document. Notwithstanding those potential consequences, Mr Kozno put the matter aside rather than give it priority and as a consequence the applicant has a regularly obtained default judgment against the respondent (Adelaide Timber Flooring Pty Ltd). In the circumstances, I consider Mr Kozno, choosing to put the claim to one side to get to on another day, is not a reasonable excuse for failing to file a defence and counterclaim. If he was aware that things were taking that bit longer the matter should have taken priority to ensure that he met the deadline and the respondent did not face the consequences that are set out at the end of the claim, of a judgment being obtained against the respondent (Adelaide Timber Flooring Pty Ltd).
Magistrate Shultz was satisfied that the applicant did not have a reasonable excuse for not having filed a defence and that the application to set aside the judgment should be dismissed. The learned Magistrate went on to also find that she was not satisfied that the applicant had a reasonable basis for defending the claim. She noted that it was not in dispute that there was a contract to complete flooring work at the respondent’s home, and that the work had been performed. The issue in dispute was the standard of the work performed and the consequences of that. Magistrate Shultz found that the particulars contained in Mr Kozno’s second affidavit did not address the claim that the work performed by the applicant was defective and restoration work was required. Her Honour said:
The information that needs to be put before a Court in an affidavit that asserts that there is a reasonable basis for defending a claim must have sufficient particulars to enable the Court to make an assessment of the genuineness of the defence and whether it is arguable on the merits. I consider the bare assertion of Mr Kozno in his evidence to day that he disagreed that the work was defective, does not provide sufficient particularity for me to be able to make an assessment of the genuineness of the respondent’s defence to the claim, if permitted, and whether it might be arguable on the merits’.[16]
[16] Decision of Magistrate Schultz paragraph 14.
District Court Review
The applicant now brings an application pursuant to s 38 of the Magistrates Court Act 1991 (‘MCA’) to review the decision of Magistrate Schulz. My powers on the application are set out in s 38(7) of the MCA. In particular, I may inform myself as I think fit and I am not bound by the rules of evidence. I must act in accordance with equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. I can rehear evidence given before the Magistrate and receive fresh evidence. In addition to detailed Notice of Review, I did receive some additional evidence in the form of:
· Report of SA Floor Inspections dated 13 August 2020, as annexed to the Applicant’s Notice of Review;
· 2 recent photographs of the Baltic pine flooring in the respondent’s home.
Applicant’s case
The applicant’s Notice of Review was lengthy having been prepared by a solicitor, and contained detailed arguments of fact and law. I summarise these as follows: -
·     that there was a minimal time lapse between Mr Konzo receiving the claim in mid-May and his attempt to file a Defence;
·     Mr Konzo had a reasonable excuse for not filing the defence on time and it was “only as a result of a misunderstanding and genuine mistaken belief, that a Defence to the claim was not filed”;
·     this was exacerbated by Mr Konzo being unwell and impacted by the COVID-19 pandemic;
·     that the applicant had a reasonable basis for defending the claim as the flooring works were carried out pursuant to the respondent’s instructions and after she had been advised of the risks with the work required, and had instructed the respondent to only complete minimal works;
·     that prior to the commencement of the works the applicant warned the respondent that the floor was in a delicate state and they would do what they could to preserve its integrity;
·     that the flooring work performed was as per the quote and the respondent’s instructions.
At the Review Hearing Mr Kozno, relied upon the prepared Notice. When asked further about the reasons why he had not filed the Defence he told me that:
·     the claim was on his radar but he missed it by a few weeks;[17]
·     he thought he had 28 days to respond but acknowledged that the claim stated clearly that it was 21 days and he had read that at the time of receipt;[18]
·     there was a delay of at least a few days between him not being able to access the Courts SA portal and attending at the Court to file a defence on 10 June 2020;[19]
·     his back pain and COVID-19 issues impacted his decision making and added time restraints. He explained that COVID-19 protocols on work sites and with collections from suppliers, added considerable time to his usual working day;[20]
·     it had been a long time, nearly 3years, since he had heard from the respondent and had written off the money owed by her for the work done and therefore when the claim came in, he mentally put it to one side to get to later.[21]
[17] T3.2-4 and T3.34-37.
[18] T3.37-T4.12 and T9.34-37.
[19] T4.32-T5.14.
[20] T6.37-T7.34.
[21] T10.8-13.
In relation to a defence to the claim, the applicant relied upon the matters set out in his Notice. Mr Kozno told me that his defence to the claim, based upon the evidence he would call at trial was that:
·     when the applicant quoted for the flooring works, issues with how thin the existing boards were, was clearly highlighted;
·     once the job was started it became clear that the problems with the floorboards was worse than expected and this was raised with the respondent;
·     the respondent directed the applicant to continue with the works despite being told that the boards would be left in a very thin state;
·     the applicant is not responsible for the current state of the floorboards as they were in a damaged state before the work started, and the respondent refused to follow the applicant’s professional advice.

The respondent denies the matters put by the applicant, and clearly stated that the floorboards worked on by the applicant were sanded beyond repair, and to a state where they are unsafe and cannot be walked on. She has been attempting to resolve the issue with the applicant for three years with no success.
Legal Principles
(i)Irregularity
Although only briefly addressed by Magistrate Schulz, the first issue to be considered is whether the default judgment was properly obtained. At the time, the judgment was sought the UCR had come into operation. Rule 142.2(2) of the UCR provides that an applicant who seeks default judgment must file an application to the Registrar for judgment in the prescribed form, that being Form 76B, ‘Application to Registrar – Request Default Judgment’.
The respondent filed the required form. However, in seeking judgment in default she ticked the box for a claim that was a ‘liquidated sum’ of $11,653.00. The Registrar of the Court then entered a judgment for that sum against the applicant.
The respondent’s claim is not in the nature of a liquidated sum. In fact, in her Minor Civil Action – Claim, at paragraph 8 she pleaded:
The Plaintiff requests that the Court assess the damages caused by the actions of the Defendant which she estimates to be in the order of $11,500 (emphasis mine).[22]
[22] Action: ELCC1-20-3323 (FDN 1).
A liquidated sum is a sum that is certain and does not require assessment by the Court. It is generally a sum set by a contract or by a scale of charges.[23] The respondent’s claim is not a liquidated claim. There is no certainty to the amount owed. The claim is for the cost of repairs, not yet performed. It is not even based on a firm quotation. The respondent appears to have understood this when she issued her claim and sought to have her damages assessed by the Court.
[23] Spain v Union Steamship of NZ Ltd (1923) 32 CLR 138.
In all the circumstances, I find that the judgment in dispute was irregularly obtained, and the applicant was prima facie entitled to have the default judgment set aside ex debito justitae.[24] This principle is now confirmed by the rule 142.11 (1)(e) of the UCR. By this rule a party may apply to set aside or vary a judgment in default of a defence on the ground that it was obtained as a result of an irregularity. Where such a judgment is set aside, Rule 142.11(2) provides that there are several options open to the court:
(a)   the Court may set aside the default judgment on such conditions as it thinks fit;
(b)   …….
(c)   if the only irregularity was that judgment was entered for a fixed amount when it should have been entered for an amount or relief to be assessed – the Court may instead, in the exercise of its discretion, amend the judgment to a judgment for an amount or relief to be assessed.
[24] Watson v Anderson (1976) 13 SASR 329 @ 333 per Bray CJ.
Rule 142.11 confirms the comments of Debelle J in Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd & Ors[25] that where a judgment is entered irregularly, there remains the question of whether the judgment should be set aside and on what terms. It is not an invariable rule that the judgment will be set aside.
[25] [2000] SASC 210.
Although I am concerned by the blatant irregularity, and the fact that the respondent sought judgment for a liquidated sum with no explanation, I will proceed to consider the issues addressed by the Magistrate in her judgment and at the hearing before me, to determine the basis upon which the judgment should be set aside.
(ii)Application to set aside a default judgment
As set out above, the application is now governed by Rule 142.12 of the UCR. By that rule there are two matters that the applicant must satisfy the court of, namely:
1 that it had a reasonable excuse for not having filed a defence;
and
2 that it has a reasonable basis for defending the claim.
Both of the qualifying grounds now rely upon a test of ‘reasonableness’. The requirement of having a ‘reasonable excuse’ for not complying with a court imposed time frame, was carefully considered by Hinton J in Marmandis v Germein[26]:
…a reasonable excuse is one in all circumstances the ordinary person would consider warrants forgiveness for non-compliance. Here it is necessarily the case that the ordinary person will appreciate the higher premium that the community places upon compliance with rules of court and orders of courts in order that justice be administered effectively and efficiently. That appreciation reflects an understanding of the importance to the functioning of the community of the effective and efficient exercise of judicial power to quell controversies arising in the community. With this understanding, the community, no less that the courts, expects litigants to discharge the obligations placed upon them by the law and the courts.[27]
[26] [2017] SASC 103.
[27] [2017] SASC 103 at [83].
(iii) Failure to file defence
The respondent’s Minor Civil Claim was filed in the Elizabeth Magistrates Court on 23 April 2020 and posted to the Respondent at its business address at Norwood on 24 April 2020. A judgment in default of a defence was filed was entered on 29 May 2020. The applicant became aware of that judgment when he attended the Adelaide Magistrates Court on 10 June 2020 to file a Defence. That was 6 weeks after service was deemed to have occurred. The time allowed for filing a defence was 21 days,[28] as clearly stated on page 2 of the Claim document.
[28] R60 of the MCR.
Mr Peter Kozno, the sole director of the applicant first told the court that he ‘had not seen the mailed civil action documents till about mid-May’ and he anticipated having 21 days to respond.[29] That evidence does not assist the court in identifying when the claim documents were actually received by the applicant relative to the deeming provision of MCR Rule 52(l)(d).
[29] Annexure A to sworn affidavit of Peter Kozno in ELCC1-20-3323.
Mr Kozno’s evidence was that when he was aware of the claim and first read it, he was aware he had 21 days to respond by filing a Defence. However, he put the claim aside and didn’t prioritise it. There were two main reasons for not doing so including a recurring moderate back injury, that did not stop him working, and extra pressures, including time pressures on his business as a result of having to comply with COVID-19 protocols. When Mr Kozno did get to filing a Defence he says he could not access the Court SA portal and was told he would have to attend at court. He again delayed several days before doing so.
I find on all the evidence that Mr Kozno prioritised his business, in difficult times, over attending to the respondent’s claim. He admitted as much in giving evidence. However, I find that the time pressures facing Mr Kozno in May 2020 as he, like the rest of the community, adapted to new ways of conducting business due to the public safety demands of the world-wide COVID-19 pandemic are a reasonable excuse for not filing a defence in time. In putting submissions at the Review Hearing it was clear that Mr Konzo was quite distressed as he struggled to maintain his business during the pandemic, and keep staff employed. This was exacerbated by him suffering a flare up of his back pain during this period. Mr Konzo did not impress as an overly sophisticated business man, and rather a tradesman. Like many in our community during 2020 the pressures of the changes to work protocols due to COVID-19 impacted his business decisions.
I find that in all the circumstances, the ordinary person in 2020, would consider that Mr Konzo’s failure to file a defence warrants forgiveness. This is particularly the case as the deadline was missed by no more than three weeks. I find that the first condition of R142.12 has been satisfied in that the defendant had a reasonable excuse for not filing a defence.
(iv) Reasonable Basis for Defending the claim
There is a clear dispute between the parties as to:
·     the scope of the flooring works that were to be carried out by the applicant at the respondent’s home;
·     the instructions given by the respondent regarding those works;
·     the quality of the applicant’s workmanship;
·     the issues raised by the applicant regarding the extra work required for the floors to be completed to the respondent’s satisfaction; and
·     the extent and cost of rectification works, if any, now required.
I have already set out in some detail the issues between the parties. At the Review Hearing the applicant relied upon an expert report of SA Floor Inspections of 13 August 2020. This report related to an inspection of the respondent’s home that took place on 28 November 2017, four months after the applicant had completed the flooring works. Although not definitive the report raises issues as to the quality of the floorboards given their age, and whether they should have been replaced rather than repaired.
Mr Kozno told me at the review hearing that the pre-existing issues with the floor boards were pointed out to the respondent, particularly once the job had started. He says that the respondent would not accept advice as to what was required to ensure the floorboards in her home were made safe.
It is not my role to determine the issues, between the parties at this hearing. I must consider whether the applicant has a reasonable basis for defending the claim. This means whether he is bona fide in his assertions and there is some possibility of him defending the claim with success.[30]
[30] Living Australia Ltd v Rans Consulting Pty Ltd [2019] SASC 86 per Hinton J at [78].
The applicant has not filed a draft Defence, however, Mr Konzo has set out detail of why he says that the company is not liable to the respondent for the cost of repairs to the floor boards in her home. Primarily he argues that she was informed by the applicant that the floorboards were thin and damaged and required additional work to ensure they were safe. The respondent wanted a minimal job done, and as a result problems have arisen. The case at trial will be one determined by oath against oath of the primary witnesses, including the expert witnesses. Until the creditability and reliability of the applicant’s witnesses are tested, it cannot be said that the applicant does not have a reasonable basis for defending the respondent’s claim.
Taking all matters into account, including the irregularity of the judgment obtained, I am satisfied that the default judgment in this matter should be set aside, and the action remitted to a different Magistrate for a re-hearing.
Orders
1      Application for review allowed.
2     Judgment entered against Adelaide Timber Flooring Pty Ltd is set aside.
3     The Action is remitted to the Adelaide Magistrates Court for hearing before another Magistrate.
4     No order as to costs.