Carter v Makris - [2011] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CARTER & ANOR v MAKRIS
[2011] SASC 109
Reasons of Judge Lunn a Master of the Supreme Court
12 July 2011
PROCEDURE
Remission of filing fee for issue of summons for possession under Part 17 of the Real Property Act 1886 - application by plaintiff for remission under s 130(2) of the Supreme Court Act 1935 based on poverty of defendant - defendant liable to reimburse filing fee to plaintiff under terms of mortgage - held defendant was a party by whom the filing fee was payable for purposes of s 130(2) and that she was in poverty - whole filing fee remitted.

CARTER & ANOR v MAKRIS
[2011] SASC 109
JUDGE LUNN:
Reasons on plaintiff’s application for remission of filing fee

The defendant is the registered proprietor of a house property at 7 Malin Street, Semaphore Park. It is her home. By a mortgage dated 1 April 2011 she mortgaged it to the plaintiffs to secure repayment of a loan of $137,000 which was repayable on 1 April 2012. Interest at 17.35% p.a. was payable on the 14^th day of each calendar month.
The defendant has defaulted in her interest payments. As at 18 May 2011 she was $3,961.58 in arrears. As at 4 July 2011 she was still in arrears. The plaintiffs have served the required default notices to enable them to enforce their rights under the mortgage to obtain possession of the property and to exercise their power of sale.
On 6 July 2011 the plaintiffs lodged for issuing by the Registrar a Summons under Part 17 of the Real Property Act 1886 against the defendant seeking an order for possession of the property. Under the Supreme Court Regulations 2005, as varied by the Supreme Court (Fees) Variation Regulations 2011,[1] the fee prescribed for the issue of the Summons is $2,126.[2]
[1] South Australian Government Gazette, 9 June 2011, pp 2391 et seq.
[2] The plaintiffs are not a prescribed corporation as defined in those regulations, but if they had been, the fee would have been $3,000.
At the time of lodging the Summons for issuing, the plaintiffs also lodged an Interlocutory Application seeking that the fee for issuing the Summons be remitted under s 130(2) of the Supreme Court Act 1935. Section 130 provides:
130—Court fees
(1) The Governor may, by regulation, prescribe and provide for the payment of fees in respect of proceedings in the court, or any step in such proceedings.
(2) The court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason.
Clause 30 of the mortgage provides that the defendant shall pay to the plaintiffs on demand all expenses which may be paid or incurred by the plaintiffs in the exercise or enforcement of their powers, rights and remedies under the mortgage. It further provides that the payment of such expenses is to be a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v Makris

Details

AGLC: Carter v Makris [2011] SASC 109
Case: [2011] SASC 109
Decision Date: 12 July 2011

CaseChat Overview and Summary

The case of Carter v Makris involved the plaintiff, Carter, seeking remission of the filing fee for the issue of a summons for possession under Part 17 of the Real Property Act 1886. The application for remission was made under section 130(2) of the Supreme Court Act 1935, based on the poverty of the defendant, Makris. Carter argued that Makris was liable to reimburse the filing fee to him under the terms of a mortgage. The court was tasked with determining whether Makris was a party by whom the filing fee was payable for the purposes of section 130(2), and if she was in poverty.

The court considered the language of section 130(2) of the Supreme Court Act 1935 and the nature of the defendant's liability under the mortgage. The court held that Makris was indeed a party by whom the filing fee was payable. Furthermore, the court found that Makris was in poverty, thereby satisfying the conditions for remission of the filing fee under section 130(2). Consequently, the court remitted the whole filing fee.

In conclusion, the court granted the plaintiff's application for remission of the filing fee, determining that Makris was a party by whom the fee was payable and that she met the poverty criteria. The court ordered that the whole filing fee be remitted to the plaintiff.

Orders