Cosenza v Denisoff, @Realty Pty Ltd
[2024] SADC 42
•17 April 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
COSENZA v DENISOFF, @REALTY PTY LTD
[2024] SADC 42
Judgment of his Honour Auxiliary Judge Chivell
17 April 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER
TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - WHAT CONSTITUTES - INVOLVING LAND
Application to review Magistrate's order setting aside judgment in default of defence.
Application for damages for trespass to land served by post and by email. Whether requirements of UCR 142.12 and UCR 142.11 met.
Held: Requirements of UCR 142.12 and UCR 142.11 were met. Magistrate's decision to set aside judgement affirmed. Application for review dismissed. No order for costs.
Magistrates Court Act 1991 (SA); Uniform Civil Rules 2020 (SA) r 42.2, 142.11, r 142.12, r 42.3 and r 65.1, referred to.
Plenty v Dillon [1991] HCA 5; Cosenza v Origin Energy Limited [2017] SASC 145, considered.
COSENZA v DENISOFF, @REALTY PTY LTD
[2024] SADC 42
Minor Civil Review
On 6 November 2019, Mr Denisoff, an employee of @Realty Pty Ltd, went to a residential property in Woodville, South Australia. He went there in the course of his employment, canvassing for business.
According to his application, Mr Cosenza “resided at, and was in possession of the property”.[1]
[1] Statement of Claim, [3]
Mr Denisoff says that he entered the property through the open driveway gates. He knocked on the front door. No one answered. He left some advertising material and a business card. He then exited the property through a small pedestrian gate.[2]
[2] Affidavit of Paul Denisoff, 15 November 2023, [2h]
It is common ground between the parties that there was a sign near the pedestrian gate, and a similar sign near the driveway which read:
“High Court Decision: Plenty v Dillon [1991] HCA 5
WARNING: ENTRY IS FORBIDDEN
ENTER PREMISES BY EXPRESS INVITATION ONLY”
Mr Cosenza issued proceedings on 1 September 2023, almost four years later, claiming damages for trespass and other relief. Rule 65.1 of the Uniform Civil Rules, 2000 (“UCR”) allows a respondent 28 days from the date of service of the claim documents to file a Defence. Mr Cosenza says that he served the documents on the respondents on 18 September 2023, so a Defence should have been filed by each respondent by 16 October 2023. This did not occur.
On 25 October 2023, Mr Cosenza caused judgment to be entered for damages to be assessed against both respondents. On 8 November 2023, both respondents filed an application to set aside the judgment. These applications came before Magistrate Jackson on 20 November 2023.
On 11 December 2023, Her Honour granted both applications, and set aside both judgments.[3]
[3] [2023] SAMC 161
Mr Cosenza now seeks a review of those decisions pursuant to s.38 of the Magistrates Court Act, 1991 (SA).
The power to set aside a judgment is contained in UCR 142.11 and 142.12.
Dealing first with UCR 142.12, since that was the rule invoked by the Respondents, the rule provides:
“(1)A party may apply under this rule to set aside or vary a judgment in default of defence on the ground that –
(a) The Claim documents …. did not come to the attention of that of that party or the party has another reasonable excuse for not having filed a defence; and
(b) The party has a reasonable basis for defending the claim.
(2)If the Court is satisfied that both grounds in subrule (1) are established, the Court may set aside the default judgment on such conditions as it thinks fit.”
Claim document came to the attention of the respondents?
In considering whether the requirements of this rule had been satisfied, Her Honour found:
The claim documents were emailed to Mr Denisoff’s email address on 18 October 2023;
Despite Mr Denisoff’s evidence to the contrary, the email contained the claim documents as attachments;
Mr Denisoff acknowledged receiving the email but said that he did not read it;
The Claim documents were also posted to Mr Denisoff by pre-paid post by Mr Cosenza.
Mr Denisoff denied receiving any such letter;
In a telephone conversation between Mr Cosenza and Mr Denisoff on 9 August 2023, the topic of service of proceedings was discussed. The respective versions of the two participants are very different. Mr Cosenza said that Mr Denisoff consented to both postal and email service of the claim documents. Mr Denisoff denied that he consented to either form of service.
On the basis of these findings, Her Honour held that the requirements of UCR 142.12(1)(a) were met. In my view the conclusion that the Claim documents did not come to Mr Denisoff’s attention cannot be sustained. Her Honour had found that Mr Denisoff received the email and that the Claim documents were attached. I think that is sufficient to hold that the documents came to his attention. The fact that he chose not to read the email is not to the point.
Another reasonable excuse?
The alternative requirement of the subrule is that Mr Denisoff had “another reasonable excuse for not having filed a Defence. Mr Denisoff’s evidence[4] was that he always expected personal service of the claim documents. Mr Denisoff received a further email from Mr Cosenza on 17 October 2023. It is exhibited to his affidavit (Exhibit PD-1). In that email Mr Cosenza:
[4] Affidavit 15 November 2023, [4(a)].
Referred to his email of 18 September 2023, which was attached;
Asserted that Mr Denisoff had consented to postal and email service;
Noted that Mr Denisoff still had not filed a defence;
Advised:
“To avoid any confusion as to any potential application. I set aside any application for default judgment. I again write to you advising that in the absence of you filing a defence, that I will seek application for judgment against you.
I look forward to receiving your defence within the prescribed time.”
As I have already noted the “prescribed time” had already expired. The email was sent at 1.42pm.
Mr Denisoff settled his defence on 18 October 2023 and left the matter in the hands of his employer’s solicitors. An affidavit of Mr Keith Kern, a Queensland solicitor, states that he spoke to Mr Denisoff on 17 September 2023. A copy of Mr Denisoff’s proposed defence was sent to Mr Cosenza on 18 October 2023, so Mr Cosenza was on notice that Mr Denisoff proposed to file a defence. Mr Kern says that the defence was not filed until 8 November 2023 because he had difficulties using the portal at the Magistrates Court. On the basis of this evidence, Her Honour concluded that Mr Denisoff had a reasonable excuse for not filing a defence.
There might well be a reason to question why it took so long, from 18 October to 8 November, to file the documents. Mr Denisoff sent a copy of his defence to Mr Cosenza on the day it was drafted, demonstrating that he was not slow to act, and having regard to Mr Kern’s difficulties with the portal, particularly since he was dealing from interstate, I agree that the circumstances do add up to a reasonable excuse for not filing the documents sooner.
A reasonable basis for defending the claim?
The other requirement of UCR 142.12 is that the party has a reasonable basis for defending the claim.
Mr Cosenza asserts that the tort of trespass is one of strict liability, and that a mistaken belief that Mr Denisoff had a right to enter his property is not a defence. One might ask why, if that is the case, Mr Cosenza thought it was necessary to erect a sign at all.
This issue has recently been examined by Blue J in Cosenza v Origin Energy Limited.[5] In case there is any uncertainty, the applicant in that case was the same Mr Consenza, and the circumstances were remarkably similar to the circumstances in this case.
[5] [2017] SASC 145
Blue J. referred to Plenty v Dillon,[6] the case referred to on Mr Cosenza’s sign. His Honour quoted the joint judgment of Gaudron and McHugh JJ:[7]
[6] (1991) 171 CLR 635; [1991] HCA 5.
[7] At p.647
“The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.”
Their Honours went on to say:
“A person who enters the property of another must justify that entry by showing that he or she entered with the consent of the occupier or otherwise had lawful authority to enter the premises… In Robson v Hallett (1976) 2 QB 939, Lord Parker C.H. said (at p 951):
“The occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful premises to come through the gate, up the steps and knock on the door of the house.”
This implied licence extends to the driveway of a dwelling-house: Halliday v Nevill.[8] However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after withdrawal of the licence is a trespasser (Davis v Lisle)[9]
[8] (1984) 155 CLR 1; [1984] HCA 80.
[9] (1936) 2 KB 434
Whether or not the notice of withdrawal of the implied licence to enter private property was received by the person entering the property is a question of fact. In Cosenza v Origin, Blue J said:[10]
[10] At [49]
“On (an application to set aside judgment) the onus lies on the defendant … to establish a defence.”
I do not take His Honour to be saying that the respondent must prove his case. In the case before Blue J, Rule 87 of the Magistrates Court (Civil) Rules 2013 (SA) required the defendant establish that he or she “has an arguable case on the merits …”
At [95], Blue J explained:
“ If Mr Palancho gives evidence at trial, no doubt his examination and cross examination will explore whether he did see a sign at the small gate and if not whether and if so how he looked for a sign. However, on a set aside application, it is sufficient to give rise to an arguable defence that Mr P. said that he did not see a sign when entering through the small gate.”
I do not take the requirement of UCR 142.12, that Mr Denisoff has a reasonable basis for defending the claim, is materially different from Rule 87 of the 2013 Rules. I agree with the Magistrate in this case that Mr Denisoff, by saying that he did not see Mr Cosenza’s signs before he entered the property, has satisfied the requirement that he have a reasonable basis for defending the claim.
That being the case, Mr Denisoff had satisfied both limbs of UCR 142.12, and the Magistrate’s power to set the judgement aside was enlivened.
Whether UCR 142.11 applies?
That conclusion is enough to dispose of the application for review in this case. However, the Magistrate also dealt with Mr Denisoff’s application under UCR 142.11, and I will deal with the case under that Rule as well in case I am wrong in the above conclusion.
UCR 142.11 provides:
(1) A party may apply under this rule to set aside or vary a judgment in default of defence on the ground that—
(a) the Claim documents … were not served on that party in accordance with the requirements imposed by these Rules and their existence and content did not come to that party’s attention at least 28 days before the date on which the default judgment was entered;
(b)-(e) ….
(2) If the Court is satisfied that the default judgment was obtained as a result of an irregularity under one or more paragraphs of subrule (1)—
(a) the Court may set aside the default judgment on such conditions as it thinks fit;
(b)-(c) ….
It is noteworthy that the requirements of UCR 142.11 are significantly different from those in UCR 142.12. In particular, UCR 142.12 requires only that the “documents” did not come to the attention of the applicant, whereas UCR 142.11 requires that “the existence and content” of the documents did not come to his attention.
Claim documents served in accordance with the Rules?
As to the requirement in UCR 142.11 (1)(a) that the service of the documents did not comply with the Rules, it is common ground that service of the Claim documents was not by express post, as required by UCR 42.3(1)(a). Mr Cosenza sent the documents by pre-paid post. Such posting is authorised by UCR(1)(b)(i) if the recipient has consented to service in that manner.
Mr Cosenza said that Mr Denisoff had consented to postal service during their telephone conversation on 9 August 2023. It is not clear whether Mr Cosenza was asserting that Mr Denisoff consented to service by express post, as distinct from merely pre-paid post, or whether he merely consented to service by post.
Mr Denisoff denied that he consented to service by post at all. He also denied that he ever received a letter by any form of post. He denied ever seeing the contents of the claim documents until after he received a copy of them from his solicitor on 18 October 2023.
The Magistrate held that she could not be satisfied on the balance of probabilities that Mr Denisoff consented to service by post, in light of the competing versions of the telephone conversation on 9 August 2023, and concluded that the documents were not served by post in accordance with the Rules.[11] I agree with this conclusion.
[11] [2023] SAMC 161, [19].
Mr Cosenza said he also served the claim documents on Mr Denisoff by email. UCR 142.2(1)(b)(i) authorises such service if the recipient has consented to service in that manner to his or her email address.
Mr Cosenza said that Mr Denisoff consented to service in that manner during their telephone conversation on 9 August 2023. Mr Denisoff denied having done so.
The Magistrate again concluded that she could not be satisfied on the balance of probabilities that Uniform Civil Rules 42.2(1)(b)(i) had been met.[12] I agree.
[12] [2023] SAMC 161, [16]. Her Honour referred to r.142(1)(b) but I think this was a slip
Existence and content of the Claim documents came to Mr Denisoff’s attention?
The second requirement of UCR 142.11(1)(a) is that the existence and content of the claim documents did not come to Mr Denisoff’s attention within the 28-day period. Although I have disagreed with the Magistrate about whether the documents came to his attention, there is nothing to detract from Mr Denisoff’s evidence that he did not read them because he thought that his employer would deal with the matter. So, although the existence of the documents came to Mr Denisoff’s attention, the contents did not.
I therefore agree with Her Honour’s conclusion that neither of the requirements of UCR 142.11(1)(a) have been met, so her power to set aside the judgment was enlivened.
The application by @Realty
For the same reasons, the power to set aside the judgment against @Realty Pty. Ltd. was also enlivened. The Magistrate accepted that the director of the company, Mr James Taylor, instructed his solicitor promptly after receiving the documents, and that Mr Kern took a number of steps to file the Defence but encountered difficulties with the Court portal, so UCR 142.12(1)(a) was satisfied. Her Honour also found that @Realty Pty Ltd had a reasonable basis for defending the claim on the same grounds as Mr Denisoff had, so UCR 142.12(1)(b) was satisfied. Her Honour also found that @Realty had a further ground to defend Mr Cosenza’s claim on the basis that it disputed his allegation that the company was in breach of the Australian Consumer Law. This added a further reason for finding that the requirements of UCR 142.12 had been satisfied. I agree with these conclusions.
For those reasons, I conclude that the decision by the Magistrate to set aside the judgments against both respondents in this matter were correct, and that the application for review should be dismissed. Each party should bear their own costs.
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