Black v Sansone and Mercuri No. Scgrg-97-1642 Judgment No. S6593

[1998] SASC 6593

BLACK  v  SANSONE and MERCURI

Magistrates Appeal
Nyland J

This is an appeal against the order of a magistrate made on 26 November 1997 wherein he refused to set aside a judgment entered in default of appearance on 8 October 1997.  The appellant was the defendant in the proceedings in the Magistrates Court and the respondents were the plaintiffs.  For convenience I will continue to refer to the parties as plaintiffs and defendant.  It is appropriate to mention that the defendant has represented himself throughout these proceedings.

I set out hereafter my understanding as to the history of this matter.  On 7 May 1997, the plaintiffs issued a summons out of the Magistrates Court (civil division) of the Mount Barker Court, alleging that the defendant owed them the sum of $13,714 together with costs and interest thereon.  The particulars of the claim stated:

“1.... By an oral agreement made in about November 1996 between the plaintiffs and the defendant it was agreed that the plaintiffs would sell to the defendant who would purchase from the plaintiffs certain foodstocks and deposits associated with the kitchen operation of the Swagman Restaurant at Littlehampton South Australia particulars of which the defendant has had.

2.... Settlement of the sale of the said items was due on the 30th November 1996.

3.... The defendant has taken possession of the said items and has sold and otherwise used the said items for his own use and benefit.

4.... The defendant in breach of the said agreement has not paid for the said items.”

On 3 June 1997, the defendant filed a defence in which he said:

“1.    I deny owing the plaintiffs $13,714 as claimed by them.

2...... The plaintiffs have removed property bought by me from the previous owner at Cleggets Road, Littlehampton.

3...... The plaintiffs derived income for three days after the settlement (undisclosed amount) that should have come to me.

4...... The plaintiffs have not provided any particulars of their claim.”

On 25 June 1997, the plaintiffs’ solicitors wrote a letter to the defendant requesting further and better particulars of his defence.  By letter dated 3 July 1997, the defendant purported to respond to that request.  On 22 July 1997, the plaintiffs filed an application seeking an order that the defendant provide further and better particulars of his defence and counterclaim within 14 days.  That application was heard by a magistrate on 30 July 1997 and an order was made that the defendant file an amended defence within 21 days.  The magistrate then adjourned the matter until 27 August 1997.  On 22 August 1997, the defendant filed an amended defence which stated, as follows:

“1.   I deny owing the plaintiffs $13,714 as claimed.

2...... I have not received an account in any form relating to the above claim.

3...... The plaintiffs have not provided me with details of their takings for the first three days operations after settlement.

4...... The plaintiffs removed property purchased by me on a walk in walk out situation after settlement.

5...... I can’t quantify what is owed to me until the plaintiffs provide me with details for the first three days trading after settlement.

6...... Mr Mercuri on the day of settlement told me that the value of stock was $5,000 not $13,714 as claimed.

7...... The plaintiffs are in breach of their obligations to provide the necessary information to finalise this matter.”

On the same date he filed an affidavit which stated:

“1.   I am the defendant in this matter.

2.... I have not received an account for this claim from any of the plaintiffs.

3.... I have only ever discussed business with Mr Francesco Mercuri the third plaintiff named.

4.... I took over the Swagman function centre on Friday the 29th of November 1996.

5.... I took over the freehold and the business walk in walk out on the same day.

6.... I spoke to Mr Francesco Mercuri on the evening of the 29th of November 1996 and told him settlement had taken place earlier that day.  I asked him the value of stock he had on hand.  He said $5,000 worth.  I asked him what stock was being used for that nights dinner.  He said $700 to $800 worth leaving a balance of approximately $4,200 to $4,300.  I said to Mercuri that I should pay the kitchen staff wages and his stock immediately.  He agreed.

7.... Later that evening he came and spoke to me and suggested he had changed his mind on that arrangement.  I was not happy about his decision and not wanting to make a scene, I suggested we talk about the situation the following day.

8.... The following evening Mercuri said to me he would like to have the weekend takings and that I would be paid a percentage of those takings and we would work out the stock owned by him on Monday.  I pointed out to him I had just paid out a lot of money and I should have the benefit of the busy weekend as the business lost money during the week.  He understood my situation and I asked him to keep accurate records of his takings and accurate records of the wages he paid so on Monday we could decide what was the fairest way to solve the problem.

9.... To this day those details have not been forthcoming.

10.... I received a summons in the post for in excess of $13,000.

11.... I have never received an itemised account from Mercuri or anyone else.

12.... I can’t understand that on the night of take over Mercuri said there was $5,000 worth of stock all up and yet his summons is in excess of $13,000.

13.... I purchased the property and business walk in walk out through an agent Mr Glen Shipway.  That is every item that was on the property would belong to me after settlement with the exception of stock.

14.... I was aware Mercuri owned some items on the property but they would remain as he would be reimbursed by the previous owner of the freehold Mr Reg Fiora at settlement or shortly after.

15.... Mercuri removed from the property the following items after settlement took place.

.......          1.     Cheese grater machine.

....... 2.      Pizza dough roller.

....... 3.      Large freezer.

....... 4.      Wok stove.

....... 5.      Clock (taken by another friend on his behalf).

....... 6.      Tulle for wedding tables.

....... 7.      Cutlery or weddings (high quality cutlery).

................. He told me he had enough for 110 settings when only 60 remained.

....... 8.      Large plates and other crockery.

16.... I don’t believe there was any more than $5,000 worth of stock at settlement as told to me by Mercuri.

17.... I believe that one third of the takings on Friday, Saturday and Sunday are owed to me.

18.... I believe Mercuri must either return all items taken from the property after settlement or pay to have them replaced.

19.... As I’m not sure as to the takings because Mercuri hasn’t given me those accurate details it is difficult for me to quantify what is owed to me.

20.... I believe that I have a substantial claim against Mercuri which may well exceed his claim against me.

21.... I know the facts herein of my own knowledge except where otherwise appears.”

On 27 August 1997, when the matter came on for further hearing, the court ordered that the defendant provide further and better particulars with respect to para 4 of the defence (that is, property allegedly removed by the plaintiffs) within 14 days.  The court further ordered that on provision of those further and better particulars that there be mutual discovery within 21 days.  The matter was then adjourned to 8 October 1997.

The defendant did not provide any further particulars to the plaintiffs and did not appear on 8 October 1997.  The magistrate then entered judgment for the plaintiffs in the sum of $14,356.56 together with $500 interest and costs for attendances on 30 July 1997 and 27 August 1997.

On 4 November 1997, the defendant applied to the Magistrates Court for an order that judgment be set aside and that he be granted leave to reinstate the action into the trial list.  In his affidavit in support of that application, he said:

“I was unable to attend court on the 8.10.97 as I was involved in another matter in the Supreme Court.”

“I wrote a letter to the Mount Barker Court prior to the 8.10.97 explaining my situation.”

His application was refusedThe defendant then appealed against that order on the grounds:

“1.... That the learned special magistrate erred in the exercising his discretion in that and because

(a)     he failed to understand the nature of the appellant’s defence.

(b)... In that finding and holding the nature of the appellant’s claim was such that the appellant could not set out his claim against the respondent’s claim.

(c).... Failed to attach sufficient weight to the fact that the appellant first phoned the Mount Barker Court prior to the hearing set down for the 8.10.97 and to be told by the lady at the court to put in writing the appellant’s request to have the hearing date changed as the appellant was involved in another matter in the Supreme Court.

(d)... Erred in expecting the appellant to be responsible for the Court not having the appellant’s letter on file.”

On the hearing of the appeal the plaintiffs’ counsel argued that even if the defendant had been committed to another attendance in the Supreme Court when the matter was due to be heard in the Magistrates Court, he could or should have done more to ensure that an explanation was forthcoming for his non-attendance.  More significantly, he submitted that the defendant had been given a number of opportunities to supply the particulars as ordered and had failed to take advantage of those opportunities.  Accordingly, there had not been any miscarriage in the exercise of discretion by the magistrate and the appeal should therefore be dismissed.

By way of explanation for his non-attendance, the defendant produced a copy of a letter which he had provided to the court advising of his inability to attend on the relevant date.  The defendant maintained that he had contacted the court prior to the relevant date to explain his dilemma and had been told to put his request for an adjournment in writing, which he had done.

The defendant said that he was unaware of what further and better particulars were required as he believed that he had already provided the necessary particulars.  In this regard, he referred to his affidavit of 22 August 1997 (supra).

After these issues had been ventilated at some length, I informed the parties that I intended to adjourn the further hearing of the appeal in the hope that these various matters, and possibly the action, might be able to be resolved. 

The defendant swore a further affidavit on 23 January 1998 to which (inter alia) was exhibited a copy of the letter delivered to the Magistrates Court and some further particulars as to the value of items which he alleged had been removed by the plaintiffs.  He stated that he was unable to quantify what was owed to him as the plaintiffs had not provided him with particulars as to their takings and did not have a make-up of their claim.  

The matter came on for further hearing before me on 23 January 1998, and there was some further discussion relating to the provision of particulars.   I subsequently adjourned the matter again to 27 February 1998 to provide the parties with a further opportunity to confer in the hope that the matter could be resolved.

On 27 February 1998, I was informed that the matter had not resolved.  Counsel for the plaintiffs indicated that the material supplied by the defendant did not satisfy the request for particulars.  The defendant indicated that he had provided what particulars he could and he believed that he had complied with what he had been asked to do. 

In view of the current state of affairs, it is left to me to determine the appeal on the merits.  In so doing, however, I am hindered by the lack of detail on the Magistrates Court file as to the matters taken into account by the magistrate and his reasons for refusing to set aside judgment.  I do not know whether the defendant’s letter as to his inability to attend court was before the magistrate when judgment was entered against him.  The form of the order made by the magistrate on 25 August 1997, in making an order for further and better particulars raises the possibility that the affidavit of the defendant sworn on 22 August 1997 was not brought to his attention.

The defendant has supplied more detailed information to the plaintiffs concerning his defence and counterclaim which appears to comply with the order dated 25 August 1997.  The plaintiffs, however, continue to maintain that the particulars supplied do not comply with the original request for particulars contained in the plaintiffs’ letter dated 25 June 1997.  On the hearing of this appeal, the plaintiffs’ counsel quite forcibly argued that the defendant had had ample opportunity to comply with that request.  The defendant maintained that the magistrate had not given him sufficient opportunity to present his argument with respect to these matters.  Counsel for the plaintiffs was unable to clarify the matters argued before the magistrate as he had not appeared on that application.  In all of the circumstances, in order to do justice between the parties, I consider that there should be an opportunity for these issues to be heard and determined.  I propose to allow the appeal, set aside the judgment in default and remit the matter back to the Magistrates Court for further hearing on the merits.