Ferguson v Apex Steel Supplies Pty Ltd - [2018] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FERGUSON v APEX STEEL SUPPLIES PTY LTD
[2018] SASC 89
Judgment of The Honourable Justice Stanley
26 June 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE
Appeal against the entry of a default judgment in the sum of $14,512.07 and a subsequent order dismissing an application to set aside that judgment. Application to admit fresh evidence on appeal. Application for extension of time within which to appeal.
Held:
1. The appellant has failed to demonstrate he has an arguable defence on the merits.
2. The application to extend the time within which to appeal from the order for default judgment is refused.
3. The appeal from the order for default judgment is dismissed.
4. The appeal from the order refusing to set aside the default judgment is dismissed.
5. Parties to be heard as to costs.
Magistrates Court (Civil) Rules 2013 (SA), referred to.
Ventura v Sustek (1976) 14 SASR 395; Goldus Pty Ltd v Australian Mining Pty Ltd [2015] SASCFC 193; Sandery v Kowalski & Anor [2016] SASC 175; Walton Stores v Maher (1988) 164 CLR 387, applied.

FERGUSON v APEX STEEL SUPPLIES PTY LTD
[2018] SASC 89
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against the entry of a default judgment in the sum of $14,512.07 and a subsequent order dismissing an application to set aside that judgment.
The respondent to this appeal (Apex Steel Supplies) was the plaintiff in an action commenced in the Magistrates Court civil division claiming $14,112.07 from the appellant to the appeal (Mr Ferguson) who was the defendant to the action in the Magistrates Court. The basis of the claim was that Apex Steel Supplies had supplied to McEwan Ferguson Pty Ltd, trading as Bsmart Housing, goods on credit in an amount of $13,063.07. McEwan Ferguson Pty Ltd failed to pay and Apex Steel Supplies sought to recover that sum from Mr Ferguson on the basis that on 23 July 2013 he had personally guaranteed payment of goods supplied on credit by Apex Steel Supplies to McEwan Ferguson Pty Ltd.
Mr Ferguson entered a defence to the claim, the particulars of which were:
1.Deny. Another entity other than McEwan Ferguson Pty Ltd was the applicant;
2.The quantum of sum owed is incorrect; and
3.The defendant is neither a director or shareholder of the principal.
Apex Steel Supplies brought an application for summary judgment which eventually was heard on 13 December 2017 after Mr Ferguson had previously sought an adjournment of the hearing of the application.
On 13 December 2017 Mr Ferguson failed to attend the hearing of the application and judgment was entered in default in the sum of $14,512.07. The sum of $14,512.07 reflected the court fee and solicitor’s fee claimed together with an attendance fee of $100 for four attendances on the matter culminating in the order for default judgment.
On 21 March 2018 Mr Ferguson applied to set aside the default judgment. That application was heard on 13 April 2018. The application was dismissed by the magistrate who had previously made the order for judgment in default.
On 17 April 2018 Mr Ferguson filed a notice of appeal against the order for default judgment made on 13 December 2017 and against the order dismissing the application to set aside the default judgment made on 13 April 2018.
The conduct of the appeals
On the hearing of the appeals to this Court Mr Ferguson applied for the admission of fresh evidence. That evidence consisted of a number of documents. First is a letter from Chris Yelland, a senior clinical psychologist at Helen Mayo House, dated 18 April 2018. The letter concerns Mr Ferguson’s wife, Sascha Ferguson. It is unnecessary to recite in detail the contents of the letter. It is sufficient to note that it sets out details of severe mental health issues suffered by Mrs Ferguson which required admission to Helen Mayo House on a number of occasions including, in particular, 12 December 2017 to 17 December 2017. Second, Mr Ferguson seeks the admission of two ASIC documents relating to McEwan Ferguson Pty Ltd and Bsmart Housing. The purpose of these documents is to establish that Bsmart Housing is the registered trading name of McEwan Ferguson Pty Ltd and that as at 24 April 2017 Mr Ferguson was neither an office holder or a shareholder of that company.
Over the objection of Mr Guthrie, counsel for Apex Steel Supplies, I admitted these documents de bene esse on the hearing of the appeal.
The appeal against the order for default judgment is well out of time. Mr Ferguson applies for an extension of time within which to institute the appeal. SCR 281 requires an appeal to be filed within 21 calendar days after the date of the judgment, order or decision subject to the appeal. Accordingly, the time within which to institute the appeal expired on 3 January 2018. Accordingly the appeal is three and a half months out of time. That delay is substantial. In the intervening period Mr Ferguson was served with a bankruptcy notice on 3 March 2018.
The explanation provided for the failure to institute the appeal within time is that Mr Ferguson believed that he could overturn the judgment by bringing the interlocutory application to set it aside. That interlocutory application was made on 22 March 2018. That is two and a half months out of time. On the hearing of the appeal Mr Ferguson also submitted that part of the explanation for his failure to institute the appeal within time was that he was distracted by his wife’s illness and problems with the business. Before the magistrate those explanations were not supported by any affidavit evidence. Mr Ferguson now seeks to adduce a letter which evidences his wife’s illness.
There is a three-limb test for receipt of fresh evidence on appeal,[1] namely, whether:
(i)It can be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing of the application to set aside;
(ii)The evidence must be such that, it would probably have an important influence on the result of the case, although it need not be decisive; and
(iii)The evidence must be apparently credible.
[1] Ventura v Sustek (1976) 14 SASR 395 at 399.
Before deciding whether to admit that evidence on appeal and considering whether the Court should grant an extension of time to appeal the default judgment, it is convenient to set out the critical parts of the magistrate’s reasons on the application to set aside the default judgment.
Magistrate’s reasons
The magistrate said:[2]
In an affidavit sworn by Mr Ferguson, and filed in support of his application to set the judgment aside, he claimed not to have attended the hearing on 13 December 2017 because his wife was unwell and he had emailed the Court that morning to advise that he would not attend. The Court file contains a record of an email from Mr Ferguson on that day, requesting a further adjournment on the basis his wife had been hospitalised the day before. In the email, Mr Ferguson also advised the Court that the debt would be paid by end of January 2018 and, if not paid by then, he would consent to summary judgment. No further evidence was provided by Mr Ferguson which would confirm the fact of his wife’s illness and why he was unable to attend on that day. I consider that without supporting evidence of his wife’s hospitalisation and the reason why he could not attend on 13 December, Mr Ferguson had not established that he had a reasonable excuse for not attending that day, and in the circumstances the second limb of r 87(2) had not been met.
[2] Apex Steel v Ferguson AMCCI-13-3153 Reasons for Ruling of Magistrate Adair, 13 April 2018 at [12].
I would admit the letter from Chris Yelland of Helen Mayo House of 18 April 2018. It supports the explanation proffered by Mr Ferguson for his failure to attend court on 13 December 2017. I am satisfied that the letter satisfies the second and third limbs of the test for the admission of fresh evidence. While I am not entirely satisfied that the evidence could not have been obtained with reasonable diligence for use before the magistrate on the application to set aside the default judgment, in the interests of justice I am prepared to admit the evidence given Mr Ferguson is a litigant in person.
Extension of time within which to appeal from the order for default judgment
The principles relevant to the determination of an application for an extension of time are explained by the Full Court in Goldus Pty Ltd v Australian Mining Pty Ltd[3] as follows:[4]
[3] [2015] SASCFC 193.
[4] [2015] SASCFC 193 at [14].
The Court has an overriding discretion to grant an extension of the time within which a party has to appeal pursuant to rule 295(1). When considering the exercise of its discretion, the court may have regard to the length of the delay, the reason for the delay, whether there is an arguable case on the substantive issue on the appeal and the extent of any prejudice on the part of the respondent. In Spurway v Police, Blue J summarised the principles which apply to an application for an extension of time as follows:
The question whether or not an extension of time should be granted involves an exercise of discretion, which should not be circumscribed by fixed and binding rules.
An applicant for an extension must bring forward material to show why the appeal was not filed within time and why the application for an extension ought to be granted.
Prejudice suffered by the other party by reason of the delay is a factor tending against exercise of the discretion to extend time.
Where the delay is substantial, the applicant must give a detailed explanation for the delay.
Where the delay is substantial, the applicant must establish either:
(a) that the delay was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal; or
(b) otherwise, that on the merits the appeal would be likely to succeed.
The overriding question is whether, if an extension is not granted, there will be a miscarriage of justice.
[Footnotes omitted.]
In my view the Court should refuse the application for an extension of time. The delay is substantial. While Mr Ferguson submits that he was distracted by his wife’s illness and his business difficulties from attending to the institution of the appeal, ultimately, I am not persuaded that, if an extension is not granted, there will be a miscarriage of justice. I reach that view on the basis that Mr Ferguson brought an application to set aside the default judgment which was heard and determined by the magistrate on its merits. Accordingly, Mr Ferguson has not suffered any prejudice as a result of the order granting default judgment, with the possible exception of the order for costs in the sum of $100 for his failure to attend the hearing on 13 December 2017. Whether that possible prejudice is real depends on the outcome of the appeal from the order dismissing the application to set aside the default judgment.
The appeal from the refusal to set aside the default judgment
The magistrate considered the application to set aside the default judgment in accordance with the provisions of r 87 of the Magistrates Court (Civil) Rules 2013 (SA) which provides for the setting aside of a judgment not being a final judgment. Relevantly r 87(2) prescribes the test for the making of such an order. It provides:
(2)The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a) has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these rules, or an order of the Court, or any time limit fixed by these rules or of the Court, in respect of the action or proceeding.
The principles applicable to an application to set aside a judgment were considered in Sandery v Kowalski & Anor[5] where Doyle J said:[6]
[5] [2016] SASC 175.
[6] [2016] SASC 175 at [22]-[30].
In Cubelic v T & D Lock Pty Ltd, Duggan J heard an appeal from a Magistrate’s refusal to set aside a default judgment under an identically worded r 87 under the preceding version of the Magistrate Court (Civil) Rules.
In that case, the plaintiff had personally served the defendant on 14 July 2009. After no response from the defendant, the plaintiff obtained a default judgment against the defendant on 12 August 2009. The plaintiff then sought to enforce the judgment through an application to charge a property in which the defendant had an interest with payment of the judgment debt. On 3 September 2009, at a directions hearing in respect of that application, the defendant was represented by a solicitor and foreshadowed an application to set aside the default judgment. The defendant’s solicitor filed an affidavit in support of the application to set aside the default judgment the following day.
The Magistrate dismissed the application to set aside on the basis that neither limb of r 87(2) had been satisfied. Duggan J dismissed the appeal from the Magistrate’s decision, upholding the Magistrate’s decision in respect of both limbs of r 87(2).
In respect of the first limb (which required that the defendant establish he had an arguable defence on the merits), Duggan J applied the following passage from the reasons of Walters J in Watson v Anderson:
… a mere statement by a defendant that he has a good defence is not sufficient to justify a review of the exercise of a judicial discretion. He must go further and demonstrate “a very compelling reason” for his failure to appear in the action, and, further, that he has a plausible defence either in law or in fact. True it is that on an application to set aside a judgment by default, the court does not pronounce on the law or the facts, but it seems to me that before allowing a defendant to come in and defend, the court should have before it materials which enable it to say how it came about that the defendant found himself bound by a judgment regularly obtained; that the defendant genuinely desires to be allowed to come in and present his case; and that issues are raised in such form as to require serious consideration of the defence which he would put forward. In the words of Jenkins L.J. in Grimshaw v Dunbar “the judge is entitled to satisfy himself that the party applying has a bona fide intention of defending the action, and that there is some possibility of his doing so with success”.
Duggan J went on to hold that there needed to be more than a bare and unsupported claim by the defendant. There must be an affidavit as to the merits of sufficient particularity to at least enable the Court to make an assessment of the genuineness of the defence and whether it is arguable on the merits. While the defendant in that case denied that he was acting in the capacity alleged by the plaintiff, his affidavit did not address the circumstances relevant to this issue. In circumstances where the defendant relied merely upon bald assertions, Duggan J upheld the Magistrate’s conclusion that the defendant had fallen short of establishing an arguable case on the merits.
In respect of the second limb (which required that the defendant establish that he had a reasonable excuse for the default), Duggan J again relied upon Watson v Anderson. He referred in this context to a passage from the reasons of Bray CJ in that case in which his Honour referred to the words on the summons that made it plain that a response was necessary within a particular timeframe. Bray CJ held that if the defendant in that case had read those words, then he must have understood what was required; and that if he did not, then he was the author of his own misfortune. Either way, there was no reasonable excuse for the default.
Applying that approach, Duggan J relied upon the clear words on the claim served on the defendant requiring that a defence be filed within 21 days, and the Magistrate’s finding that the defendant simply chose to ignore the claim for a period of time. Duggan J held that the combination of these matters justified the Magistrate’s conclusion that the defendant had not established a reasonable excuse for not filing a defence.
Cubelic v T & D Lock Pty Ltd represents a relatively rigorous approach to the setting aside of judgments. However, that approach is required by r 87(2), particularly when interpreted in light of the overarching requirements of r 3(1)(a). In the case of commercial litigation, there is an imperative to ensure that the rules are interpreted and enforced in a manner conducive to the expeditious determination of proceedings. While this should not occur at the expense of doing justice to the parties and more generally, which remains the paramount concern of the courts, this does not mean that parties will be given unlimited opportunity to pursue or contest a claim. If they have not taken an earlier opportunity reasonably available to them to identify and pursue a proper basis for contesting a claim, then even achieving justice between the parties may not require that they be afforded a further opportunity. But certainly once regard is had to the interest in the just and expeditious administration of civil justice more generally, and in particular the need to ensure that the public’s confidence in the courts’ ability to efficiently determine matters is not undermined, it can readily be seen that there must be limits to the parties’ entitlement to contest claims where they have fallen into default in their conduct of the litigation.
Some rigor in the courts’ approach, as demonstrated by the reasons of Duggan J in Cubelic v T & D Lock Pty Ltd, is consonant with, if not required by, the approach of the High Court to applications to amend in Aon Risk Services Australia Ltd v Australian National University. As the reasons of the various members of the Court in that case make plain, commercial litigation has a particular claim to expedition. Delay and disruption in the ordinary course of litigation not only exacerbate the time, cost and inconvenience to the parties, and the uncertainty and strain of litigation to which they are subjected, they also have an undesirable impact on the availability of judicial and court resources to other parties, and upon the public’s confidence in the courts’ ability to administer justice in a commercial setting.
[Citations omitted].
The magistrate in this matter explained her refusal to set aside the default judgment on the following basis:[7]
[7] Apex Steel v Ferguson AMCCI-13-3153 Reasons for Ruling of Magistrate Adair, 13 April 2018 at [13]-[22].
I was prepared to provide Mr Ferguson with a further opportunity to file evidence in support of his claim that he had a reasonable excuse however, before doing so, I considered whether the evidence met the first limb of r 87(2) which requires that he demonstrate he has a reasonable defence on the merits.
Mr Ferguson’s filed defence is brief and bordering on a bare denial. It pleads only that ‘another entity’ other than McEwan Ferguson was the applicant, the quantum of sum owed is incorrect and the defendant is neither a director nor shareholder of the principal. This defence, on its own, does not in my view, demonstrate an arguable defence. The claim is not made against the principal. Whether Mr Ferguson is a director or shareholder of that principal is irrelevant to the claim that Apex makes under the guarantee and indemnity, a copy of which was produced to me in an affidavit filed and sworn by Mr Constandopoulos of Apex on 15 November 2017 in support of Apex’s application for summary judgment. The credit application was made in the name of Mike Ferguson trading as McEwan Ferguson Trust and, on the evidence of Mr Constandopoulos, the account was at all times operated under the style name BSmart Housing. A copy of the guarantee and indemnity signed by Mike Ferguson on 23 July 2013 was tendered together with copies of accounts from Apex to BSmart Housing for the period of 22 February 2017 to 30 September 2017 showing a total balance of $13,063.07. Mr Constandopoulos deposed that the accounts had not been paid by the principal, the amount of the invoices had not been disputed and he sought to rely on the personal guarantee and indemnity provided by Mr Ferguson.
McEwan Ferguson Pty Ltd, trading as BSmart Housing was wound up on 31 January 2018.
A copy of the judgment was served on Mr Ferguson under cover of a letter from the plaintiff’s solicitors dated 13 December 2017. A bankruptcy notice was subsequently issued on 13 February 2018 and served personally on the defendant on 3 March 2018. On 20 February 2018 an amount of $350 was deposited by BSmart Housing into the plaintiff’s bank account.
In an affidavit sworn by Mr Ferguson on 12 April 2018 he deposed having made the payment of $350 on 20 February to reduce the judgment debt and proposed to make further regular payments to discharge the debt. He accepted at the hearing that he had provided a personal guarantee and indemnity in relation to the debt and wished to discuss with the plaintiff’s solicitor a payment arrangement. He had also proposed to the plaintiff an arrangement whereby a third party company would guarantee the settlement. Notwithstanding his proposal he submitted that he was not responsible for the debt on the basis the invoices were issued to the wrong entity.
That basis of Mr Ferguson’s defence, that he was not personally liable, was set out in para.3 of his affidavit of 21 March 2018 that:
McEwan Ferguson Pty Ltd is the correct entity. The invoices were written to that entity, not me.
and, in his affidavit of 12 April 2018:
The invoices made out to BSmart Housing are for a Company McEwan Ferguson Pty Ltd that owns the business name of which I was not a director at the time.
It was pointed out to Mr Ferguson, at the hearing of the application to set aside judgment, that a claim had been issued against himself and not McEwan Ferguson pursuant to the guarantee and indemnity he had provided in respect of the debts incurred by McEwan Ferguson. At the hearing he acknowledged this fact and reinforced to the Court that he wished to enter into a payment arrangement with the plaintiff. It was recommended to Mr Ferguson that he provide details of his financial circumstances to the plaintiff’s solicitor in order to negotiate a payment arrangement. At the hearing he accepted that suggestion.
Given the concessions made by Mr Ferguson both in his affidavits and at the hearing, in particular that the entity in relation to which the credit was provided was the McEwan Ferguson Trust, and his acceptance that he provided a guarantee and an indemnity in respect of the credit provided to that entity, I am of the view that Mr Ferguson has not demonstrated that he has a bona fide defence to the claim made by the plaintiff. No material was provided which indicates the judgment amount is incorrect. Mr Ferguson has accepted that he signed the deed of guarantee and indemnity on 23 July 2013 and his main complaint is that the action ought to be against the company, and not himself personally, notwithstanding his acceptance that the principal has not paid the outstanding accounts and that he provided a personal guarantee in respect of the same.
Given these findings, I consider that Mr Ferguson has failed to establish that he meets the tests in MCCR r 87(2).
In the circumstances of these findings my discretion under MCCR r 87(1) is not enlivened. However, even if Mr Ferguson had established that the evidence met the tests set out in MCR r 87(2), and that discretion was enlivened, I consider that the following facts and circumstances would tell against the exercise of the discretion in Mr Ferguson’s favour:
(a)Mr Ferguson was advised of the judgment shortly after 13 December 2017 and made no attempt to set it aside until 21 March 2018 which, I consider, is an unreasonable delay, made only after a bankruptcy notice was issued and served, and after the plaintiff has expended further costs in enforcement of the debt.
(b)At the hearing before this Court, and in statements made in affidavits and emails tendered to the Court, Mr Ferguson sought to delay the action, not to enable him to defend the action, but to enable him to negotiate a payment arrangement with the plaintiff’s solicitors.
(c)After Mr Ferguson was advised of the judgment, but before the bankruptcy notice was served, Mr Ferguson attempted to make partial payment of the debt.
(d)In an email to the plaintiff’s solicitor dated 20 March 2018, one day before the application to set aside judgment was filed, Mr Ferguson sought to put a payment proposal to the plaintiff and an extension of time to comply with the bankruptcy notice. At no time did he suggest that the judgment was irregularly obtained nor did he indicate that he considered he had grounds to set it aside.
Mr Ferguson’s application to set aside the judgment is refused.

Mr Ferguson submits that the magistrate, in dismissing the application to set aside the default judgment, erred in two ways. First, by failing to find he had a reasonable excuse for not attending court on 13 December 2017. Second, in concluding that he had given a guarantee and an indemnity in respect of the debts incurred by McEwan Ferguson Pty Ltd.
The evidence of the letter from Chris Yelland substantiates the claim made by Mr Ferguson on the day of the hearing when default judgment was ordered, that he was unable to attend court because of his wife’s illness. I do not doubt that had this evidence been before the magistrate she would have found that he had a reasonable excuse for not being in attendance at court. It is clear that but for her finding in relation to r 87(2)(a) she would have afforded Mr Ferguson the opportunity to adduce evidence of this kind. I am satisfied that Mr Ferguson has established that he has a reasonable excuse within the meaning of r 87(2)(b). That leads to a consideration of whether he has established that the magistrate erred in finding on the merits that he did not have an arguable defence.
The evidence before the magistrate was that Mr Ferguson completed an application for commercial credit with Apex Steel Supplies for Mike Ferguson as Trustee for the McEwan Ferguson Trust. Mr Ferguson executed that application on 23 July 2013 in the capacity as “manager”. At the same time he also executed a deed of guarantee and indemnity. The relevant clause of the deed is clause 3 which provides:
In consideration of the Supplier extending or agreeing to extend credit or further credit to the applicant at the Guarantor’s request (testified by the Guarantor’s execution of this agreement) for goods sold or to be sold from time to time, the Guarantors guarantee payment to the Supplier of all money which is now or at any time in the future becomes due and payable to the Supplier by the applicant on any account or accounts whether now existing or which may in the future be opened or in any manner whatsoever, including but not limited to amounts payable by the applicant to the Supplier arising out of a relationship of trustee and beneficiary.
Subsequently Apex Steel Supplies supplied goods on credit to McEwan Ferguson Pty Ltd trading as Bsmart Housing. Invoices were rendered to Bsmart Housing which apparently were paid by McEwan Ferguson Pty Ltd, apart from the invoices in respect of the claimed amount.
In short, Mr Ferguson submits that he has a good defence to the claim for moneys owing by him pursuant to the guarantee because all he agreed to guarantee was the debts of himself as trustee for the McEwan Ferguson Trust, not the debts of McEwan Ferguson Pty Ltd.
For the purposes of considering this submission I would not admit the evidence of the two ASIC documents. While I am satisfied that the evidence is credible and relevant to the defence Mr Ferguson wishes to propound, the evidence would not have an important influence on the result of the case and it has not been shown that it could not have been obtained with reasonable diligence for use at the hearing of the application to set aside judgment. The documents do no more than evidence that Bsmart Housing is the trading name of McEwan Ferguson Pty Ltd and that Mr Ferguson is neither a shareholder nor an officer of that company. As the magistrate noted, Mr Ferguson is not being sued as a principal of the company but as the guarantor of its debts.
I would dismiss the appeal from the refusal of the magistrate to set aside the default judgment. While I am satisfied that Mr Ferguson has a reasonable excuse for not having appeared at the hearing where the order for default judgment was made in accordance with r 87(2)(b) I am not satisfied he has an arguable case on the merits in accordance with r 87(2)(a). In any event, as the magistrate recognised, satisfaction of both limbs of the test prescribed by r 87 merely enlivens the Court’s discretion to set aside the judgment. As the magistrate held, even if the conditions which enliven the discretion to set aside the judgment had been established, she would not have exercised the discretion to set aside the judgment for the four reasons she explained. Mr Ferguson has failed to demonstrate that the exercise of the magistrate’s discretion is infected by relevant error.
Mr Ferguson’s submission that the guarantee on which he was sued was not a guarantee in respect of the debts of McEwan Ferguson Pty Ltd trading as Bsmart Housing cannot be sustained. It is important to understand the commercial context in which this guarantee was provided. Mr Ferguson as the manager of McEwan Ferguson Pty Ltd trading as Bsmart Housing made an application to Apex Steel Supplies for the supply of goods on credit. He nominated as the applicant himself as trustee for the McEwan Ferguson Trust. From July 2013 until 2017 Apex Steel Supplies supplied goods on credit to McEwan Ferguson Pty Ltd trading as Bsmart Housing. Until early 2017 McEwan Ferguson Pty Ltd paid those accounts. Presumably it did so because goods were supplied to it for use in the conduct of its business.
Apex Steel Supplies continued to supply goods in reliance upon the representation by Mr Ferguson that he had provided a guarantee and indemnity in respect of those goods. In continuing to supply goods on credit in reliance upon Mr Ferguson’s representation, Apex Steel Supplies acted to its detriment.
In the circumstances Mr Ferguson is estopped from denying any liability pursuant to the guarantee in accordance with the principles of estoppel by representation in Walton Stores v Maher.[8]
[8] (1988) 164 CLR 387.
Mr Ferguson has not established that he has an arguable defence on the merits. Accordingly, he has failed to demonstrate that the magistrate erred in finding that he did not have an arguable defence.
In any event, whether an order should be made setting aside a default judgment involves the exercise of a judicial discretion. On appeal a court will only interfere with such an order if it is infected with House v The King[9] error. Mr Ferguson has failed to demonstrate any such error. It has not been demonstrated that the magistrate has acted on any wrong principle. She has not taken into account any irrelevant consideration. She has not failed to take into account any relevant consideration.
[9] (1936) 55 CLR 499 at 505-506.
Mr Ferguson has failed to demonstrate he has an arguable defence on the merits. The factors identified by the magistrate for declining to exercise the discretion demonstrate that Mr Ferguson apprehends this position. This action involves a relatively modest sum. The interests of expedition, economy and justice warrant the dismissal of these appeals.
Conclusion
I would refuse the application to extend the time within which to appeal from the order for default judgment made on 13 December 2017. I would dismiss that appeal. I would dismiss the appeal from the order refusing to set aside the default judgment. I would hear the parties as to costs.