Jaffer v Chakasa Pty Ltd No. Scciv-02-1418

JAFFER v CHAKASA PTY LTD
[2003] SASC 123
Civil

PERRY J. (ex tempore) This is an application for an extension of time within which to appeal from a default judgment entered in favour of the respondent Chakasa Pty Ltd, which is the plaintiff in proceedings in the Civil Division of the Magistrates Court.
The respondent’s claim was filed in the Magistrates Court on 15 February 2001. It was said to have been served by post. The appellant maintains that he never received the claim.
He had been trading as Costner Motor Company. But that company went out of business with the appellant owing a number of debts.
Put shortly, the respondent’s claim is that in about October 1998 the appellant agreed to accept the respondent’s 1984 Mercedes Benz 380 SEL motor vehicle on consignment for sale. The respondent asserts that the agreement with the appellant was on terms that the vehicle would not be sold for an amount less than $26,000.
The respondent asserts that in breach of the agreement the appellant sold the vehicle for $18,500 without obtaining the approval of the respondent for sale at that figure. Hence the respondent claims in the proceedings damages amounting to $7,500.
On 23 March 2001, judgment was entered in default of the filing of a defence by the appellant for the amount claimed, that is, $7,500 plus costs.
On 17 April 2001, a magistrate ordered that certain real property of the appellant, being the land contained in Certificate of Title Register Book Volume 5557 Folio 148, be charged with payment of the judgment debt.
At that stage, or soon after, it appears that the proceedings came to the attention of the appellant. By an application filed on 8 June 2001, he sought an order that the judgment be set aside and that he be given leave to file a defence.
On 13 July 2001, a magistrate ordered that the judgment be set aside and that the appellant have 28 days within which to file a defence, provided, however, that at the time of lodging the defence he pay into the court the sum of $2,500 “in respect of part security for costs in respect of the defence of this action”.
Upon the appellant’s failure to comply with that order by filing a defence and by paying the money into court, the respondent sought the issue of a warrant of sale against the personal property of the appellant.
There then seems to be a long gap in the chronology of events associated with the proceedings. This may be explained in part by some negotiations which took place between the parties.
Be that as it may, on 8 October 2002, the appellant filed a belated application in this court seeking a waiver of fees to enable him to apply for an order for extension of time for the lodging of an appeal against the judgment entered in the Magistrates Court.
The application for waiver of fees was rejected by the Registrar on its merits, that rejection being notified by letter dated 27 November 2002.
Subsequently the matter was brought on in the judge’s chamber list. I am not sure how this occurred, but at all events, after being adjourned from another judge, the matter came before me on 11 April 2003. In the absence of both parties, I stood the matter over to today.
Unfortunately, the respondent is not in attendance today. The precise reason for this is not clear to me. It seems likely that the respondent was not notified of the hearing.
Notwithstanding that, I will proceed to make orders, the terms of which I will refer to in due course, but conditionally upon the respondent being given an opportunity to appear and argue against the orders coming into effect.
Put shortly, the appellant says that he simply did not have $2,500 to comply with the condition imposed by the magistrate with respect to the setting aside of the default judgment. He has been working in remote country areas in an endeavour to restore his financial position since the collapse of his business and this also explains in part the delays associated with the progress of the matter.
I called for the Magistrates Court file after the matter had been referred to me. Having perused the file closely, it appears to me that the entry of judgment was irregular.
The claim is specifically a claim for $7,500 damages. As best I can see from the file, the judgment in default of defence was signed as though the claim was for a liquidated amount, that is, under Magistrates Court (Civil) Rules (1992) r 61(1).
The matter should have been dealt with under r 62, pursuant to which the Registrar should have fixed a date, time and place for the hearing by the court of the assessment of damages. This is because the claim was for damages of a kind other than those referred to in r 61.
I can see no record of such an assessment having taken place.
In any event, it seems to me that despite the long lapse of time, having regard to the material brought into court by the appellant, there may well be an arguable defence. This is on the footing that even if there was a breach of contract in the sense that there was a sale at a figure below the amount authorised, as to which I am unable to express a view one way or the other, it may be that the vehicle was not worth any more than the price which was received by the appellant.
In the circumstances, I think it proper to make the following orders:
1.That there be a waiver of fees.
2.That there be an extension of time within which the appellant may lodge a notice of appeal to and including 26 March 2003.
3.That e xhibit 6a to the affidavit of the appellant sworn on 24 March 2003 be treated as the notice of appeal and that service of the notice be dispensed with.
4.That the appeal be allowed and that judgment be set aside.
5.That the appellant be at liberty to file a defence to the proceedings in the Magistrates Court within 28 days of Friday 2 May 2003.
6.That the operation of the preceding orders be suspended until Friday 2 May 2003 in order to afford to the respondent an opportunity of advancing any argument it may wish to put against the orders coming into effect.
7.That a copy of these reasons for judgment and of the order, together with a copy of the affidavit of the appellant sworn on 24 March 2003 together with the exhibits thereto, be served by post on the solicitors for the respondent, Winters, forthwith, together with notification of the further hearing of the matter which I fix for Friday 2 May 2003 at 9.30 am (15 minutes set aside). The appellant is excused from attendance at the hearing on 2 May 2003.
I intimate that, in the circumstances, given what I perceive to be the irregularity in the entry of judgment in the first place, it is proper that there be no order as to the costs of the appeal.

[2003] SASC 123

24 April 2003