Black v National Australia Bank No. Scgrg-99-728 Judgment No. S426
[1999] SASC 426
•23 September 1999
BLACK v NATIONAL AUSTRALIA BANK
[1999] SASC 426
LANDER J This is an appeal by Ian Black (the appellant) against a decision of a magistrate refusing to set aside a judgment obtained by the respondent against him.
The respondent brought proceedings on 11 June 1998, against the appellant, claiming $25,741.36, being monies lent by the respondent to the appellant, and a claim for interest on those monies in accordance with the loan agreement.
The file discloses that the summons was served on 5 July 1998.
On 3 August 1998, the respondent entered judgment against the appellant in default of the appellant's appearance, for the sum of $27,352.54, including interest.
On 2 October 1998, at the request of the respondent, a charging order was made over the appellant's interest in land in Certificate of Title Register Book Vol 5271, Folio 353, and Certificate of Title Register Book Vol 5271 Folio 354.
On 6 May 1999 the appellant applied to set aside the judgment entered on 3 August 1998, upon the ground that he did not receive a copy of the summons.
The interlocutory application was to be heard on 19 May 1999. The magistrate's court file discloses that the respondent claimed that it was not served by that interlocutory application, but it came to hear about it in other proceedings in the bankruptcy division of the Federal Court.
The respondent, which was not served, appeared on the interlocutory application. The appellant failed to appear on his own application and the application was dismissed.
On 17 June 1999 the appellant made a further application to set aside the judgment entered on 3 August 1998. He attended on that application which was dismissed.
This appeal, which was brought on 21 July 1999, seeks orders that the matter be re-instated and that the appellant be given leave to file a defence.
The appellant was advised in writing that this appeal would be heard on 14 September. On that day he telephoned my associate and advised that he could not attend. He was advised that the matter would be heard on 23 September. He told her that that date was inconvenient. He was told that he had to attend unless another date was set. He has not attended on this application and Mr Blumberg, counsel for the respondent, seeks an order dismissing the appeal and an order for costs. The appellant has been called in the precincts of the Court.
I intend to make those orders, but before I do so, so as perhaps to avoid further proceedings, I will say something shortly about the merits of the appeal upon the papers which have been filed.
The magistrate was empowered, pursuant to r 87 of the Magistrates Court Civil Rules to set aside or vary the judgment which had been entered on 3 August 1998.
However, r 87(2) provides:
“The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she -
(a).. has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these rules or an order of the Court, or any time imposed by these rules or order of the Court, in respect of the action or proceeding.”
In my opinion, on the affidavits provided to the learned magistrate, the appellant made out neither of those matters. He brought forward no evidence to suggest that he had an arguable case on the merits, and he gave no reasonable excuse for not having complied with the Rules.
Although I have not had the benefit of any argument from the appellant today, it seems to me, on the papers at least, that the decision of the magistrate to refuse to set aside the judgment was inevitable.
In those circumstances, and absent any further evidence, which could have been brought forward on this appeal, it was also inevitable in my opinion that this appeal would be dismissed.
In any event, I do not have to come to a decision on the merits. However on Mr Blumberg’s application I order:
1. Appeal dismissed.
2. Appellant to pay the respondents costs to be taxed.
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