Cheetham v John Martins Financial Services Ltd No. DCCIV-99-513 Judgment No. D126

[1999] SADC 126

CHEETHAM V JOHN MARTINS FINANCIAL SERVICES                
[1999] SADC D126

His Honour Judge Lowrie

1. The plaintiff appealed against the order of Master Berry made in this matter on 19th August 1999 concerning an application dated 12th April 1999 of Mr Cheetham when he sought an extension of time in regard to an application to review a minor civil action and also a matter of waiver of fees.

2. The learned Master in his reasons set out all of the relevant background factual matters which occurred in this minor civil review instituted by the plaintiff against the defendant and particularly orders made by Mr Cannon SM on 24th February 1999 and a subsequent order by Mr Hiskey SM on 5th March 1999.

3. The learned master reviewed in a correct manner the events which  occurred in the minor civil review.  It was an application instituted by the defendant against the plaintiff seeking to recover $1,176.75 for goods sold and delivered and credit charges between the months of August 1995 to September 1996.  Mr Cheetham filed a defence to that matter, in effect not denying the liability for the goods but pleaded numerous other matters.  On 15th June 1999 the matter came on before Mr Hiskey who entered a judgment by consent for the sum of $1,16.75 and directed that the credit be given for $260 previously paid, and that the balance then outstanding was $856.75 and directed a stay of execution so long as the defendant paid $25 a fortnight. From the comments made before me it appears that the balance now owing is the sum of $45.  Much was made by Mr Cheetham of the nature of the consent judgment and the error in its recording.  I believe Mr Cheetham has misconstrued the nature of that order.  Subsequently Mr Cheetham instituted further applications, summarised in the reasons of the learned Master.  Mr Hiskey subsequently, on  4th March 1999 delivered another ruling refusing the appellant’s application.  Those reasons, in my opinion, accurately set out the history of the action. 

4. The Master correctly said that the matter before him related to orders made, not only by Mr. Hiskey and Mr Cannon. 

5. The Master considered firstly, the extension of time application.  There is a twenty one day time limit following the date of the judgment which he viewed as running from 5th March 1999.  The appellant’s application was dated 12th April 1999. 

6. The application to review was quite a lengthy document and many areas are difficult to understand.  The Master described the grounds as “rambling and incoherent”. 

7. The Court when considering such an application is always concerned with the merits of the initial hearing. The Master examined all papers on this file in regard to that hearing. I have myself examined such material. The Master held, which is readily apparent, that the review had no reasonable prospects of success, and refused the order. He then considered the application for waiver of lodgment of fees. The Master correctly referred to Section 53 of the District Court Act concerning waiver of fees, and comments of the learned writer of Civil Procedure. The Master pointed out that the affidavit of the plaintiff simply deposed to his “non-existent financial position and pension status due to income lost of $700 per week” and with no other financial information. The Master found that this information was totally insufficient to make any order and refused an order for the waiver of the fees and dismissed the application.

8. The plaintiff then filed a more detailed written document on 2nd September this year appealing against the reasons of the master.  In that document the plaintiff set out some nine heads under which he believed this appeal has merit.  Many of the propositions in that document are irrelevant and do not address the issues in question.  The plaintiff addressed me at length on all heads.  The plaintiff debated at length the issue of his name being recorded in a Credit Reference document and his desire that his name be removed.  I endeavoured to explain to the plaintiff that that matter is not in any way before me or a matter to be considered on this appeal. 

9. I have again endeavoured to read the submissions put to me by the plaintiff.  I have also re-read the file from the Magistrates Court.  I do not believe that there can be any criticisms of the Magistrates, or the nature of their orders.  I am also of the view that the decision of the Master was correct. 

10. For these reasons it is my opinion that the Master’s decision was correct and I dismiss the appeal.

11. The defendant was represented by Mr Pearce from its credit office and I do not propose to make any order as to costs.