Fong v Shi - [2007] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
FONG v SHI
[2007] SADC 7
Judgment of His Honour Judge Soulio
14 February 2007
PROCEDURE
Appeal against decision of Master setting aside a default judgment pursuant to 1987 rule 51.06 - appeal instituted pursuant to s43(2)(a) District Court Act 1991 and 2006 DCR 292(1) - held, appeal allowed.
District Court Act 1991 s43(2)(a); District Court Rules 1987 r51.06, r97.01, 2006 DCR 292(1), referred to.
Mayfield v Zadow & Zadow [2006] SADC 70; Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52; Evans v Bartlam [1937] ASC 473; Leasefin Corp Ltd v Clarke SCSA Jud No S3660, 16 Otober 1992; Westpac v Garrett (2004) SASC 265 6 September 2004; Watson v Anderson (1976) 13 SASR 329 at 341; Poyser v Gajic & Anor [2006] BSC 380 (20 October 2006); Fightvision Pty Ltd v Onisforou & or; Tszyu v Fightvision Pty Ltd & Anor (1999) 47 NSWLR 473; Olsson v Dyson (1969) 120 CLR 365 at 388; Vickery v Woods (1952) 85 CLR 336 at 345; Upper Hunter County Disctrict Council v Australian Chilling and Freezing Co Pty Ltd (1968) 118 CLR 429 at 437; Alexander v Rayson [1936] 1 KB 169; Miles v New Zealand Alford Estate Co (1186) 90 All ER Rep 1726; Wigan v Edwards & Another (1973) 1 ALR 497; Thomas v Thomas [1842] 2 QB 851, considered.

FONG v SHI
[2007] SADC 7
Introduction

This is an appeal by the plaintiff against a decision made by a Master on 18 September 2006 whereby the learned Master set aside judgment signed by the plaintiff in default of the filing of an address for service. Service of the proceedings was effected on 17 May 2006. An address for service was required to be filed by the defendant on or about 7 June 2006. It was not filed. Judgment was signed on 15 June 2006 pursuant to Rule 23.01 of the District Court Civil Rules 1987 (“the 1987 Rules”). The application to set aside that judgment was filed on 20 June 2006. The judgment was set aside pursuant to r51.06 of the 1987 Rules.
Nature of the Appeal
The appeal was instituted on 29 September 2006. The District Court Civil Rules 2006 (“the 2006 Rules”) came into operation on 4 September 2006. Rule 6 DCR 8 of the 2006 Rules is the transitional provision. It relevantly provides that the 1987 Rules continue to apply to appellate proceedings commenced before the commencement date. Accordingly, and it was common ground between the parties, the 2006 Rules regulate the present appeal.
The appeal is instituted pursuant to s43(2)(a) of the District Court Act 1991 and 6 DCR 292(1), and is by way of re-hearing.
As Smith J observed in Mayfield v Zadow & Zadow[1] this means that:
This Court may exercise its own discretion without regard to the manner in which it was exercised by the Master (see

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: [2007] SADC 7
Decision Date: 14 February 2007

CaseChat Overview and Summary

The District Court of South Australia heard an appeal in Fong v Shi, where the plaintiff, Fong, sought to enforce a judgment against the defendant, Shi. The appeal was against a Master's decision to set aside a default judgment, which had been entered due to the defendant's failure to file an address for service. The appeal was allowed, and the default judgment was reinstated.

The primary legal issue was whether the Master correctly exercised his discretion in setting aside the default judgment. The court had to consider the principles guiding the exercise of discretion to set aside a default judgment, such as whether the defendant had a prima facie defence and a reasonable explanation for the failure to appear. The court also had to determine whether the agreement between the parties was a valid contract with sufficient consideration.

The court found that the Master had not erred in his exercise of discretion. The court considered the evidence and found that the defendant had an arguable defence, as there was a possibility that the agreement was not a valid contract due to insufficient consideration. The court concluded that the plaintiff had provided sufficient legal consideration by withdrawing the caveat over the defendant's property in exchange for the defendant's promise to pay the monies owed by his father. Therefore, the defendant's allegation that the agreement was a voluntary transaction without consideration was without merit.

The court allowed the appeal and reinstated the default judgment against the defendant. The court will hear the parties regarding consequential orders.

Orders