Kiddeh v Impressa Pty Ltd

[2011] SASC 62

Supreme Court of South Australia

(Magistrates Appeals: Civil)

KIDDEH v IMPRESSA PTY LTD & ORS

[2011] SASC 62

Judgment of The Honourable Chief Justice Doyle (ex tempore)

14 April 2011

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

PROCEDURE - COSTS - SECURITY FOR COSTS

The appellant was the defendant in proceedings in the Magistrates Court - the plaintiffs and respondents claimed payment for over $35,000 for outstanding rent, legal costs and other expenses - the appellant and defendant filed a defence and counterlcaim in the Magistrates Court - the Magistrate ordered, pursuant to r 81 of the Magistrates (Civil) Rules, that the defendant and appellant pay security in the sum of $10,000 to proceed with the counterclaim - the defendant and appellant did not pay the security by the deadline - the Magistrate stayed the counterclaim - the appellant appealed against this decision - whether the Magistrate erred in staying the counterclaim.

Held: appeal dismissed. The appellant to pay $1,200 to the respondents by way of costs of the appeal.

Magistrates Court (Civil) Rules 1992 r 81, referred to.

KIDDEH v IMPRESSA PTY LTD & ORS
[2011] SASC 62

Magistrates Appeal:  Civil

1. DOYLE CJ (ex tempore): In these proceedings the plaintiffs make a claim for payment of a little more than $35,000 against Mr Kiddeh. The claim arises out of a tenancy in which Mr Kiddeh was a tenant, and the plaintiffs were the landlords. The claim is for outstanding rent, legal costs payable under the lease and certain other expenses.

2. Mr Kiddeh has filed a Defence in the Magistrates Court. The latest Defence appears to be one dated 29 June 2010, but not filed in the Court until 5 August 2010. It is probably intended as a Defence and Counterclaim.  It does not comply with the Rules, nor does it identify any clear basis for a Defence or a Counterclaim.

3. An earlier Defence and Counterclaim, filed in April 2010, is somewhat clearer.  The earlier defence and counterclaim contains a denial that there is any rent owing by Mr Kiddeh, and he claims that he has paid off any arrears.  There is also a claim for damages for loss suffered by Mr Kiddeh in the course of the business that he was carrying on. He also claims damages for loss of equipment and stock but it is not clear how this loss came about.

4. Mr Kiddeh has also filed an affidavit sworn on 18 February 2011, which also makes his claims a little clearer. He appears to admit that rent payments were in arrears, but he claims that he had cleared the arrears or paid the arrears by the time he was put out of the premises. Accordingly, he challenges the cancellation of the lease.  While his defence stands, there is nothing to prevent him maintaining this denial of liability.

5. The affidavit also has a claim that he suffered loss because the lease was wrongly terminated. There is nothing in the affidavit to support or help prove this claim. The figures in the affidavit do not line up with the amount of his counterclaim, so while I think I know what Mr Kiddeh wants to claim in his Counterclaim, his Defence and Counterclaim in the Court is completely unclear.

6. On 17 January 2011, the Magistrate ordered, pursuant to r 81 of the Magistrates Court (Civil) Rules 1992, that Mr Kiddeh give security in the sum of $10,000.  If the $10,000 was not paid within 28 days his Counterclaim was to be stayed.  Mr Kiddeh did not make the payment. He tells me that he has not got the money. This is the order that Mr Kiddeh is appealing against.

7. In my opinion there was a sound basis for the Magistrate to make the order.

8. First of all, the Counterclaim, as I have explained, does not comply with the requirements of the Magistrates Court (Civil) Rules 1992. 

9. Second, there is a long history of Mr Kiddeh not complying with Rules and orders of the Court.

10. Third, there is good reason to doubt that Mr Kiddeh has the assets to meet an order for costs, if the court orders costs against him. The costs of hearing the counterclaim are likely to be substantial, and the case will be made longer if the counterclaim is heard.

11. The Magistrate’s order does not stop Mr Kiddeh from defending the landlord’s claim against him. The order is only that the Counterclaim by Mr Kiddeh be stayed, and the Counterclaim has no effect on Mr Kiddeh’s Defence.

12. However, just what happens at the hearing in the Magistrates Court will depend upon any other orders made in the Magistrates Court between now and the hearing.

13. There is no reason for setting aside the order by the Magistrate, and the fact that Mr Kiddeh cannot pay the money is not a reason. For those reasons I dismiss the appeal.  I order that Mr Kiddeh pay to the respondent’s solicitors the sum of $1,200 by way of costs of the appeal.