Badcock v Rest-Ezi Furniture Pty Ltd No. Scgrg-99-1143 Judgment No. S459

[1999] SASC 459

BADCOCK v REST-EZI FURNITURE PTY LTD
[1999] SASC 459

Magistrates Appeal (Civil)
1 DOYLE CJ (ex tempore):   This is an application for leave to appeal against a decision of the Magistrates Court.  If leave is granted, the parties wish me to dispose of the appeal.
2 On 17 September 1999 a magistrate refused to extend an order made under s 17 of the Enforcement of Judgments Act staying a warrant of sale over real property of the appellant. The warrant has been issued to enforce a judgment for $30,633.17 obtained by the plaintiff by default in the Local Court of New South Wales. The default judgment was obtained in February 1998 and registered in South Australia in April 1998.
3 Since then, the applicant has obtained a number of orders staying enforcement of the judgment.  The orders have been made on the basis that the applicant is attempting to have the default judgment set aside.  The applicant claims that the debt is owed by the company, not by him personally, and that the judgment should not have been entered because the statement of liquidated claim discloses no cause of action against the applicant. 
4 The Magistrates Court file contains a copy of the New South Wales proceedings.  I have examined them.  It does appear to me that the applicant was sued merely as a servant or agent of the two companies that were sued at the same time.  There is considerable force in the submission that the applicant advances in relation to the judgment, at least on my reading of the pleading.  It is also submitted that there has been an obvious double-counting of interest.
5 However, the affidavit material before me also discloses that the applicant has made no less than four unsuccessful applications to the New South Wales court to have the judgment set aside.  For all I know, these points have already been raised with, or noted by, the New South Wales court and for some reason failed for lack of substance.  A fifth application has now been made to the New South Wales court and is to be heard tomorrow week, that is, on 29 October.  It is also relevant to record that the respondent has obtained a charging order over the applicant's real property and has lodged a caveat against the applicant's certificate of title, giving notice of that charging order. 
6 Thus, the respondent's position is in fact reasonably well secured, although I have no information as to the extent of the equity in the property.  However, the fact is that the New South Wales judgment still stands.  Some 20 months have passed since it was obtained.  There have been four unsuccessful attempts to set it aside and a series of stays already granted.  Were it not for the fact that there seems to be some merit in the applicant's claim that the judgment is irregular, this would be a hopeless application and appeal bearing in mind the history.
7 But, even allowing for the possible merit in the applicant's claim, it seems the me that it cannot be said that the magistrate erred in deciding, after all this time and under these circumstances, that a further stay should not be granted.  The discretion is a wide one and it seems to me that the result that the magistrate reached was one that was certainly open on the facts. 
8 I consider that the magistrate was entitled to conclude that the time had come for the court to allow the respondent to enforce its judgment unless the applicant could actually get the judgment set aside or get a stay from the New South Wales court. 
9 The New South Wales court will be better informed about the matters that have been raised on previous motions to set aside the judgment and on the significance of the points that the applicant raised before me. 
10 I add that it is now almost two months since the applicant's fourth attempt to set aside the judgment was dismissed, although, as I have already mentioned, the fifth attempt will be heard on Friday week.  For all those reasons I would refuse leave to appeal.  I do so because, on the material before me, the appeal has no reasonable prospect of success. 
11 Even if leave to appeal were granted, I am inclined to the view that I would, in any event, have refused the appeal on its merits.  For those reasons, I refuse leave to appeal. 
12 However, that is not the end of the matter.  On 1 October 1999 Bleby J granted a further stay until further order. 
13 Bearing in mind that the fifth application to set aside the judgment will be heard next week, I have taken the view that it would be inappropriate for the property to be sold in the next seven days.  Therefore, while my view is that the respondent should be at liberty to proceed to enforce its judgment, I propose to allow the stay ordered by Bleby J to continue, but to vary his order to provide that the stay will expire at 5 pm  on Friday, 29 October 1999. 
14 Accordingly, the orders of the court are: 

1. That the application for leave to appeal be refused.  

2. That the stay granted by order on 1 October 1999 be varied to provide that the stay will expire at 5 pm  on Friday, 29 October 1999. 

3. That the applicant pay to the respondent its costs of the application and order made today, including the costs of the hearing before Bleby J.

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