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Cubelic v T & D Lock Pty Ltd

Cubelic v T & D Lock Pty Ltd

Case [2009] SASC 397 21 December 2009

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CUBELIC v T & D LOCK PTY LTD T/A TOP CAT LANDSCAPING
[2009] SASC 397
Judgment of The Honourable Justice Duggan
21 December 2009
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Appeal against refusal of Magistrate to set aside default judgment entered against appellant – whether appellant had arguable case on merits – whether appellant had reasonable excuse for failing to comply with Rule 87 of the Magistrates Court (Civil) Rules 1992.
Appeal dismissed – appellant did not discharge onus placed on him by Rule 87 to establish he had arguable case on merits – appellant did not establish reasonable excuse for non-compliance with Rules.
Magistrates Court (Civil) Rules 1992 (SA) r 87, referred to.
Watson v Anderson (1976) 13 SASR 329; Battiste v Mulvaney [1997] SASC 6419, considered.

CUBELIC v T & D LOCK PTY LTD T/A TOP CAT LANDSCAPING
[2009] SASC 397
Magistrates Appeal: Civil.

DUGGAN J: This is an appeal against the refusal by a Magistrate to set aside a default judgment entered against the appellant.
The respondent commenced proceedings against the appellant in the Magistrates Court (Civil Division) by filing a claim for payment of the sum of $9,000. The particulars of claim were as follows:
The Plaintiff’s claim against the Defendant is for the sum of $9,000.00 which is the amount owing for services rendered, to and for the Defendant at the request of the Defendant during the month of December 2007, full particulars whereof the Defendant has already had.
According to the affidavit of proof of service the claim was served on the appellant on 14 July 2009.
There was no response to the claim and on 12 August 2009 judgment was signed against the appellant. On 17 August 2009 the respondent filed an application seeking an order that a property in which the appellant has an interest be charged with the payment of the judgment debt. This application was set down for hearing on 27 August 2009. The appellant was represented at this hearing and the matter was adjourned to 3 September 2009 after the solicitor for the appellant foreshadowed the making of an application to set aside the default judgment. At the hearing on 3 September 2009 the Court granted the appellant an extension of time to file and serve an application to set aside judgment and a supporting affidavit.
On 4 September 2009 the appellant filed an affidavit in support of the application to set aside the default judgment. He stated that on about 18 August 2009 he received an application for a charging order on his residence. He then telephoned his solicitor who asked him whether he had been served with a summons in relation to the matter. He said he advised his solicitor that he did not recall being served with a claim. However, he said he later went back through his papers and located the claim…

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 Cubelic v T & D Lock Pty Ltd

Details

AGLC: Cubelic v T & D Lock Pty Ltd [2009] SASC 397
Case: [2009] SASC 397
Decision Date: 21 December 2009

CaseChat Overview and Summary

The appeal involved Cubelic, the appellant, against T & D Lock Pty Ltd, the respondent. The case revolved around the refusal of a Magistrate to set aside a default judgment entered against the appellant. The appellant sought to challenge the judgment, arguing that it was inappropriate and that he had an arguable case on the merits. Additionally, he contended that he had a reasonable excuse for not complying with Rule 87 of the Magistrates Court (Civil) Rules 1992. The court of appeal was tasked with determining whether the appellant had discharged the onus of demonstrating that he had an arguable case on the merits, as well as whether he had established a reasonable excuse for his non-compliance with the relevant rules.

The primary legal issues the court needed to address were whether the appellant had an arguable case on the merits and whether he had a reasonable excuse for failing to comply with Rule 87 of the Magistrates Court (Civil) Rules 1992. The appellant had the burden of proving both aspects, and the court had to assess the evidence and arguments presented to determine if these conditions were met. The court's decision hinged on a careful evaluation of the merits of the case and the appellant's explanation for his failure to adhere to the procedural rules.

The court found that the appellant had not discharged the onus of proving that he had an arguable case on the merits. Furthermore, the court determined that the appellant had not established a reasonable excuse for his non-compliance with the procedural rules. Consequently, the appeal was dismissed. The court held that the appellant had not satisfied the requirements set out in Rule 87, and therefore, the default judgment was upheld. The decision underscored the importance of adhering to procedural rules and the high threshold for setting aside a default judgment.

No further orders were made beyond the dismissal of the appeal. The court's decision reaffirmed the principle that parties must diligently follow procedural requirements and that the burden of demonstrating a reasonable excuse for non-compliance lies with the appellant.

Orders