Ferguson v Premier Plasterboard Pty Ltd - [2018] SASC 65

Supreme Court of South Australia
(Magistrates Appeals: Civil)
FERGUSON v PREMIER PLASTERBOARD PTY LTD
[2018] SASC 65
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
12 April 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT
Appeal against a judgment of a Magistrate in the Adelaide Magistrates Court dismissing an application to set aside a default judgment entered against the appellant.
Held, per Kourakis CJ:
1. Appeal dismissed.

FERGUSON v PREMIER PLASTERBOARD PTY LTD
[2018] SASC 65

KOURAKIS CJ (ex tempore): This is an appeal against a judgment of a Magistrate in the Adelaide Magistrates Court dismissing an application to set aside a default judgment entered against the appellant.
On 6 October 2016 the defendant and the corporate vehicle of which he was the principal, McEwan Ferguson Pty Ltd, entered into a deed of settlement with two companies, Premier Plasterboard Pty Ltd and Insulation SA Pty Ltd.
The deed of settlement provided that McEwan Ferguson would pay the sum of $33,342.18, being the total of sums owing to each of the companies plus legal and other associated costs. The deed provided for payment in instalments. The first instalment was due on the execution of the deed in the sum of $2,500. Further instalments were payable thereafter with the total amount to be paid by 28 February 2017.
The payments were not made on the due dates other than an amount of $2,500 which was paid by bank transfer on 18 October 2016. Mr Ferguson has told me today that he thinks other payments might have been at other times but he hasn't been able to locate any documentary evidence that that is so.
The plaintiff companies issued proceedings on 13 January 2017. The proceedings were served on the company, McEwan Ferguson, by post. An affidavit was filed with the court on 21 March 2017 by process server Matthew John Stephens. Mr Stephens deposed that on 21 January 2017 between the hours of 1:00 and 2:00 pm he served Michael Shane Ferguson with the claim personally. I should interpose here that the parties to the deed were both McEwan Ferguson as the debtor and Mr Ferguson personally as the guarantor and the claim against him was on that guarantee.
On 29 March 2017 judgment was entered, following a request to the registrar to enter judgment in the sum of $36,527.87 after proof of service was filed. After some communications with the solicitors for the plaintiff that request was modified, the plaintiff's solicitors advising that they would not claim interest in the sum of $1,116.40 which had been included in that request of 29 March 2017. The court office appears to have modified the request by reducing the total amount owing to $35,411.47.
Mr Ferguson brought an application to set aside that judgment. I should say that Mr Ferguson tells me today that as a result of the entry of the default judgment, attempts by him to obtain finance to pay out the amount owing failed. As best I can see from the court file, Mr Ferguson's application was brought in early June 2017.
There is an affidavit on his part sworn on 6 June 2017 and filed with the court on that date. An interlocutory application filed on the same day sought orders setting aside the default judgment allowing the first and second defendant to defend the action. The affidavit acknowledged one payment in the sum of $2,500 had been made. Again, in that affidavit, Mr Ferguson deposed that, to the best of his knowledge, one more payment had been made directly to the plaintiff. As I earlier observed, no documentary evidence to that effect has been produced by Mr Ferguson. In the affidavit Mr Ferguson deposed that the summons had not been served on him and that he had only become aware of the default judgment when he received an email on 19 May 2017 referring to a bankruptcy notice.
There appears to be some inconsistency between that assertion and the affidavit of 6 June 2017 and Mr Ferguson's statement to me today that the finance fell through in early 2017 because of the default judgment but I need not stay to resolve that here.
The matter came before Magistrate Gumpl on 21 July 2017. His Honour heard sworn evidence from Mr Ferguson and Mr Stephens, and the Magistrate accepted the sworn evidence of Mr Stephens over Mr Ferguson’s. Plainly this court is not in a position to make its own findings of credit on the transcript. The Magistrate’s reasons are rather elliptical but it is clear enough on a very simple, single issue hearing that he simply was persuaded by the evidence of Mr Stephens that personal service had been made.
I should observe, however, that Mr Stephens’ evidence was entirely based on reliance on his affidavit. He could not recall the property itself until searching on Google Maps shortly before the hearing. He had no direct recollection of making personal service. He testified that Mr Ferguson appeared familiar to him but had no idea in what context he had seen him.
Mr Ferguson gave evidence that he had not been personally served. He testified that he had phone records, which he had requested from Optus but had not yet received, that showed that he was elsewhere between 1:00 and 2:00 pm on 21 January 2017. Mr Ferguson subsequently obtained those records and placed them before the Magistrates Court in a further affidavit sworn and filed on 31 July 2017. Those records show that at 2.06 pm on 21 January 2017 Mr Ferguson made a phone call from Stonyfell. Mr Ferguson tells me that it takes something in the order of 55 minutes to drive from his residence at Mount Torrens to Stonyfell. He also tells me that he wonders whether the times shown on the document given to him by Optus might be Australian Eastern Standard Time (AEST) rather than Australian Central Standard Time (ACST). If so, then the phone call would have been made at 1.36 pm AEST.
However, it is also unknown where the tower which relayed the phone call is actually situated and what its reach is, and that creates a further unknown.
Unfortunately, these difficulties ultimately must lay at Mr Ferguson's feet, because his obligation in adducing further evidence to set aside a decision made in the Magistrates Court is to show that the evidence is credible, cogent and likely to have altered the decision made below. On the face of the Optus evidence it might well be ACST and moreover the reach of the tower may allow for an even shorter distance in travelling time from Mount Torrens, depending on where that tower is.
Accordingly, the evidence does not possess the cogency and weight which is likely to have led to a rejection of Mr Stephens’ evidence. For those reasons I do not interfere with the finding of fact on service. In any event, Mr Ferguson has not shown there is a basis upon which he could reasonably defend the action. I have already mentioned he has produced no evidence as to any further payment.
Mr Ferguson has told me he has a counterclaim against one of the plaintiffs for a deterioration of the plasterboard they had provided. If that is so, then Mr Ferguson will have to bring that counterclaim now by separate action. It is not in the nature of a set off that gives good reason to set aside the default judgment.
Finally, I observe that from the court file it is not clear to me why the amount of $1,116.40 in interest was disclaimed by the plaintiff's solicitor before judgment was entered on 29 March 2017 but then seems to have been claimed back as a reason for not reducing the full amount of $2,500 by way of payment in a court order by Magistrate Gumpl on 31 August 2017. However, that was not a ground of appeal and in the absence of the plaintiffs who, on the face of the grounds of appeal pursued by Mr Ferguson, had decided not to be present, I am not inclined to interfere or vary the judgment to reduce it by the amount of $1,116.40.
For these reasons, I dismiss Mr Ferguson's appeal.