Cosenza v Denisoff, @Realty Pty Ltd - [2024] SADC 42

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…

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.

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Details

Case: [2024] SADC 42
Decision Date: 17 April 2024

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, @Realty Pty Ltd, against a decision to set aside a default judgment. The plaintiff, Mr Cosenza, claimed trespass to land and sought damages and an injunction. The defendant sought to set aside the default judgment on the grounds that the court lacked jurisdiction, and the claim was statute-barred.

The court was required to determine whether the plaintiff's claim was statute-barred and whether the court had jurisdiction to hear the matter. The court found that the plaintiff's claim was not statute-barred as the cause of action accrued when the defendant entered the land, and the limitation period had not expired. The court also found that it had jurisdiction to hear the matter as the defendant had not demonstrated any jurisdictional error.

The court held that the defendant's application to set aside the default judgment was dismissed. The court found that the defendant had failed to provide a sufficient basis for setting aside the default judgment and that the plaintiff's claim was valid. The court also found that the defendant had not demonstrated any exceptional circumstances that would warrant setting aside the default judgment.

The court ordered that the defendant pay the plaintiff's costs of the appeal and that the default judgment remain in place. The court found that the defendant's delay in bringing the application to set aside the default judgment was unreasonable and that the plaintiff had suffered prejudice as a result. The court also found that the defendant's application was an abuse of process and that the defendant had acted in a vexatious manner.

Orders