Baldwin v Krakow Nominees Pty Ltd No. Scciv-02-487

BALDWIN v KRAKOW NOMINEES PTY LTD
[2002] SASC 281
Magistrates Appeal: Civil

PERRY J. (ex tempore) This matter concerns an appeal from the dismissal of an application by the appellant in the Magistrates Court to set aside a judgment recorded against him by default.
Initially, particulars of claim were filed in the Magistrates Court on 23 October 2000, seeking repayment of a loan. The amount of the claim against the defendant, who was sued jointly with other defendants, was $12,506.40.
The appellant did not defend the proceedings and judgment was signed against him in default of appearance.
A warrant for sale of goods and chattels was issued to enforce the judgment. Pursuant to the warrant, an assistant sheriff attended at the appellant’s address on 12 March 2001. According to the endorsement on the warrant made by the assistant sheriff, the appellant stated that there were no effects at the house to seize, that he rented the house and lived there with his wife and children, that he did not own a car, trailer, boat or any other item which could be seized, and apart from his clothes, all other property was owned by his wife.
There was no suggestion in the endorsement made by the assistant sheriff that the appellant on that occasion indicated that he wished to defend the proceedings.
However, in July 2001, the appellant made the first application to set aside the judgment, that application being considered by a magistrate about a week later. The endorsement on the file by the learned Special Magistrate who considered that application on 27 July 2001is as follows:
“Proceedings stayed for 3 months to enable Deft [the appellant] to pay the $10,000 loan pursuant to the guarantee plus interest at commercial rates, plus costs to date. Liberty to apply. Costs in the cause.”
It is clear from that note that the magistrate was given to understand that the appellant would pay $10000 and that an interval of some three months, being a period over which the proceedings were stayed, was thought to be sufficient time within which he could raise the necessary money.
Subsequently the appellant brought a further application to set aside the default judgment. This was dealt with by another magistrate. It is that other magistrate’s dismissal of the application from which the present appeal is brought.
The learned Special Magistrate, whose decision is under appeal, heard argument from the appellant to the effect that the interest rate was unreasonably high and indeed usurious. The appellant was questioned as to what the learned Special Magistrate under appeal believed to be an agreement which was reached and which accounts for the notation made on 27 July 2001. He was informed by the appellant that he was unable to pay the money because his ability to pay was dependent on funds “that should have come from the plaintiff to him via a third party and the plaintiff did not pay the third party, the third party did not pay him, so he cannot pay the plaintiff.”[1]
[1] Reasons for ruling of Dr A.J. Cannon SM, 3 April 2002, para 5.
At the stage when the matter was under consideration by the learned magistrate under appeal, that is in April 2002, there was an application for a sequestration order in bankruptcy listed in the Federal Court. The magistrate took the view that the application before him was prompted by the appellant’s concern as to the application in the Federal Court.
In the ex tempore remarks which he delivered he said:
“The plain facts of this matter are that there is no defence to the original claim. That was acknowledged implicitly in the agreement that was reached last July. Mr Baldwin when given an opportunity to pay the claim which was always owing and was then a judgment debt, failed to avail himself of that opportunity and the fact that he says that that is the fault of the plaintiff indirectly is not relevant.”
He went on to say:
“Further, his position is prejudiced by the fact that having failed to honour the commitment made in July, he took no action to deal with the problem of the judgment until now, April of the next year. It is clear that the only reason for this application is to avoid bankruptcy. That is not a proper reason. A proper reason is a defence on the merits and an excuse for breach of the process that let the judgment in place in the first instance. Mr Baldwin has neither, and his application is dismissed.”
The learned magistrate then took the further step of endorsing on the file that no further application to set aside the judgment was to be accepted in the registry without the prior leave of the duty magistrate.
The appeal to this Court is technically out of time in that it was not filed until 1 July 2002. But a delay was occasioned by reason of the fact that the appellant made an application for the waiver of fees, notice of appeal having been lodged in time, April 2002.
In those circumstances, I think it proper to extend the time within which the appeal may be brought nunc pro tunc to the date of filing, that is to say to 1 July 2002.
I have heard Mr Baldwin, who appeared in person on the hearing of the appeal as to the grounds set out in a notice of appeal and also as to more general comments which he made as to the circumstances in which the debt was incurred.
He has not identified any matters which could possibly lead to the conclusion that he has any meritorious defence. I share the same view as the magistrate under appeal in that I regard the appeal as yet another step being taken by the appellant in order to avoid bankruptcy.
I do not think it necessary in the circumstances to deal with each of the grounds of appeal as set out in the notice of appeal, except to say that I am far from satisfied that he was not given a fair hearing before the magistrate under appeal, and in my view the reasons given by that magistrate do not indicate that he erred in reaching the conclusion which he did.
The appeal is dismissed.
I order the appellant to pay the respondent’s costs of and incidental to the appeal to be taxed.
MR BALDWIN: Can I seek leave to appeal?
HIS HONOUR: On what grounds do you suggest that you might have leave to appeal?
MR BALDWIN: I think that today I would have preferred to have legal representation. I have spoken to a solicitor.
HIS HONOUR: I don’t regard the case as being fit for consideration by the Full Court. I dismiss the application for leave to appeal.
JUDGMENT CITATION
1. Reasons for ruling of Dr A.J. Cannon SM, 3 April 2002, para 5.

[2002] SASC 281

13 August 2002