Chafer v Tankard
[2004] VSC 326
•24 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5947 of 2004
| JOHN FOREST CHAFER | Plaintiff |
| v | |
| IAN DOUGLAS TANKARD | Defendant |
---
JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 AUGUST 2004 | |
DATE OF RULING: | 24 AUGUST 2004 | |
CASE MAY BE CITED AS: | CHAFER v TANKARD | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 326 | |
---
Judgment debt - Stay of a warrant of seizure and sale.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Kewley | Robert D. Taylor & Associates |
| For the Defendant | Mr I. Tankard (in person) |
HIS HONOUR:
In this matter, the judgment debtor, Ian Douglas Tankard, seeks a stay of a warrant of seizure and sale pursuant to which the Sheriff proposes to conduct a public auction of a property owned by him tomorrow. The property in issue is situated at 1 Creamery Road, Toolern Vale. The judgment debt arises from a judgment in the Magistrates' Court, pursuant to which Mr Tankard was ordered to pay $40,000 together with costs of $52,855.73 and interest of $22,819.70 on 19 December 2003. Mr Tankard seeks a stay in order to make application for leave to appeal the magistrate's decision.
The Magistrates' Court Act (1989) provides for the institution of an appeal out of time by leave of the Supreme Court. An appeal instituted more than 30 days after the making of the order complained of is deemed to be an application for leave to appeal. On the hearing of such an application, the court must consider, firstly, whether the failure to institute the appeal in time was due to exceptional circumstances and, secondly, whether it is satisfied any other party to the appeal would not be materially prejudiced because of the delay.
In the present case, Mr Tankard says that he has not hitherto sought leave to appeal because he has been unable to obtain a copy of the reasons for the magistrate's decision although he says that he has sought such reasons on three occasions. He further says he has not been able to obtain copies of the exhibits which were put in evidence before the magistrate and that he has been caught up with attending to his property which has been affected by drought conditions.
It appears that the magistrate gave oral reasons for his decision which took some extended time to read. Mr Kewley, who appeared as counsel in the Magistrates' Court, has, before me, estimated that such reasons took in excess of one hour to read. Mr Tankard says that he has been advised by staff at the Magistrates' Court at Sunshine that the practice is to destroy the audio tapes made of civil proceedings three months after the conclusion of the proceedings. Mr Tankard's understanding is thus that the record by way of tape of the magistrate's reasons has now been destroyed. Mr Kewley has confirmed to the court that the understanding of his instructing solicitor is that such tapes are destroyed within three months as a matter of the usual practice. Helpfully, however, Mr Kewley has also advised the court that, at the time the reasons were given by the magistrate, he appeared to be reading from extensive notes. It is therefore possible that the magistrate does have full notes of his reasons.
This places the court in a difficult position. It has before it a litigant in person and it does not have before it a record of the reasons in respect of which that litigant complains. It seems to me that, although there is currently no satisfactory material before the court to demonstrate a probable ability on the part of Mr Tankard to show, firstly, that exceptional circumstances have occurred to excuse the failure to institute an appeal in time or, secondly, to show that such delay has not materially prejudiced any other party, nevertheless, the balance of convenience must ultimately favour giving Mr Tankard some limited opportunity to place before the court evidence of the magistrate's reasons and to make to the court an application for leave to appeal out of time in proper form.
My view as to the balance of convenience is further affected by the fact that Mr Kewley's instructions are that the property which the Sheriff intends to sell materially exceeds in value the amount of the judgment debt and it is accepted by both parties before me that that property is unencumbered apart from the warrant which is in issue in these proceedings. It follows that I am satisfied that Mr Tankard, on the balance of probabilities, does have the capacity ultimately to satisfy further orders for costs and to satisfy any undertakings as to costs thrown away by reason of the stay which he seeks today.
Mr Tankard has indicated to me that he would undertake to pay any costs thrown away by reason of the stay which he seeks. In the circumstances, I propose to order that, upon the judgment debtor in person undertaking to pay any costs thrown away by reason of the stay of the warrant of seizure and sale forming the subject matter of the summons before the court, (1) execution of the warrant of seizure and sale dated 12 May 2004 be stayed for 28 days; (2) the judgment debtor's summons be adjourned to Friday 17 September 2004; (3) the judgment debtor file and serve upon the judgment creditor within 21 days (a) any initiating process by which he may seek to challenge the judgment upon which such warrant is founded, (b) a short summary statement of grounds upon which any further stay is sought, and (c) an affidavit evidencing the reasons of the magistrate for the judgment referred to.
In addition, it seems to me that Mr Tankard will have to pay the costs of today. Is there anything you want to say about, Mr Tankard?
MR TANKARD: I made an application for an ex parte (indistinct) injunction and because the prothonotary asked me, or rather ordered me, to provide Mr Taylor with a copy of the affidavit and summons and we now have Mr Kewley here as well as Mr Taylor, could you make it clear to me, since as I applied for an ex parte, why those two have participated? I don't mind their presence but Mr Kewley has been - - -
HIS HONOUR: They have participated because the relief you seek directly affects their client's interest and I might add that some of the things Mr Kewley has said have materially helped you.
MR TANKARD: Yes, I realise that but - - -
HIS HONOUR: And he has materially assisted the court. Is that all you have got to say about costs? Is that all you want to put to me?
MR TANKARD: No, it was actually a question to you.
HIS HONOUR: I am not here to answer questions, Mr Tankard.
MR TANKARD: Well, (indistinct).
HIS HONOUR: What do you say about costs? Is there anything else you want to say about the costs of today?
MR TANKARD: We have got the costs that are due to the Sheriff because of the advertising.
HIS HONOUR: Yes.
MR TANKARD: We have the costs to Mr Kewley for representing Mr Taylor and Mr Chafer and the other thing is may I - you may reject this straight - that may I have a printed copy within a day or two of what you have just read out please?
HIS HONOUR: Yes. A copy of the order will be issued by the prothonotary.
MR TANKARD: Through the prothonotary?
HIS HONOUR: Through the prothonotary.
MR TANKARD: All right.
HIS HONOUR: But you are going to have to obtain some evidence as to what the magistrate's reasons were. You are going to have to obtain that. You are going to have to ask him for a copy of his notes. I am not going to tell you how you go about it, but when this matter comes back you are going to have to have before the court some material relating to the magistrate's reasons.
MR TANKARD: It actually seems to be - well, this is a flashpoint with Magistrate Barrett. I don't think - - -
HIS HONOUR: Mr Tankard, I am not going to enter into debate about it. I am indicating to you that the order I have made contemplates that you will place before the court evidence as to the magistrate's reasons. I am not going to tell you how you go about getting that, but it is going to have to be the best evidence available to you. You cannot come back to court seeking leave to appeal unless you do so in proper form and there is some evidence of what the magistrate's reasons were. It is as simple as that.
MR TANKARD: I understand that. What I was going to say is that it seems to be not just Mr Barrett but fairly widespread in the Magistrates' Court, that attitude.
HIS HONOUR: Yes. I propose to order that the judgment debtor pay the judgment creditor's costs on an indemnity basis. In my view, this proceeding was brought at the last possible time on the basis of inadequate material and, in those circumstances, you are entitled to your costs on an indemnity basis, Mr Kewley.
MR KEWLEY: Thank you, Your Honour. I had intended to make that application. Your Honour, I am instructed by my instructor that, in order to recover these costs in the event they weren't paid by Mr Tankard, he would have to issue proceedings against Mr Tankard to recover them, or Mr Chafer would, because they are in favour of Mr Chafer. Might I seek an order, Your Honour, that, if the costs that you have just ordered, have not been paid by Mr Tankard prior to any eventual auction, then they are paid from the auction proceeds.
HIS HONOUR: No, I am not prepared to make that order today, Mr Kewley. This matter is going to come back before the court in 28 days and on that date, hopefully, either Mr Tankard will get leave to appeal or the prospect of an appeal will be terminated and, at that point, there will be a further question as to costs and at that point, if you want to make some application of the kind you have just made, then you can make it.
MR KEWLEY: Thank you, Your Honour.
---
0
0
0