KOHN v FUCHS

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
KOHN v FUCHS
[2019] SADC 94
Decision of His Honour Judge Tilmouth
10 July 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Application to set aside a judgment obtained in default of appearance allowed on the basis of concessions by the respondent that the applicant was not notified of the hearing due to her solicitor failing to advise her of it.
Magistrates Court (Civil) Rules 2013 (SA) r 87(2); Magistrates Court Act 1991 (SA) s 38(7)(d)(ii), s 38(7)(d)(iii)(B), referred to.
Langanis v Roberts Supreme Court of South Australia, Mullighan J, 15 July 1993; Rem v Kargas Supreme Court of South Australia, Nyland J, 30 March 1994; Mortimer v State of South Australia [2001] SASC 37, Gray J, applied.

KOHN v FUCHS
[2019] SADC 94

The court has before it an application to review a minor civil decision by which a Magistrate gave judgment against the applicant in default of appearance.
The underlying proceedings were an action by the respondent for a property damage sustained to her Suzuki Swift motor vehicle on 22 November 2017 in a collision with the applicant’s vehicle, a Holden Commodore at Gawler. This claim amounted to $6,879.68, plus a filing fee of $196.00 and a solicitor’s fee of $365.00. A defence was entered on behalf of the applicant by her solicitor alleging negligence and contributory negligence on the part of the respondent. The solicitor also filed a counter-claim for damages to the applicant’s vehicle of $2,036.88.
The matter came before the Magistrates Court on 8 January 2019 for a directions hearing, at which the applicant failed to appear. An order was made adjourning it to 12 February 2019 and a direction made for the Registry to notify the applicant. When the matter came on before the same Magistrate on the adjourned date, there was again no appearance by the applicant. The Court file was endorsed with the following orders at this time:
1The counterclaim is dismissed.
2Judgment for the plaintiff in the sum of $7,389.68 (which includes the filing fee and solicitors fee on filing).
In the application for review filed with the court, the applicant claims she was not served with notice of these proceedings. As it transpired, the court notices were sent to her solicitor who failed to advise her or the respective dates. It was on this basis that the respondent through its solicitors Botten Dnistriansky Kellis Lawyers, properly consented to allowing the application for review and the matter remitted for hearing.
This concession is correctly made according to a line of Supreme Court decisions involving cases of solicitor default, as was the case here, on the footing that in applications for setting aside judgments entered in default, MCCR 87(2) of the Magistrates Court Rules (2013) (SA) attention is usually directed at non-compliance by the litigant: Langanis v Roberts,[1] Rem v Kargas,[2] and Mortimer v State of South Australia.[3]
[1] Supreme Court of South Australia, Mullighan J, 15 July 1993.
[2] Supreme Court of South Australia, Nyland J, 30 March 1994.
[3] [2001] SASC 37, Gray J.
Although the practice of the Magistrates Court is for the successful applicant in setting aside a default judgment to pay costs thrown away, it was accepted by the parties in this instance that the questions of costs be dealt with by the trial Magistrate.
It is for these reasons that when the matter came on for hearing in this court on 5 July 2019, the following orders were made by consent:
1The application for review is allowed, the order declining to set aside the default judgment is rescinded and in lieu thereof an order is made allowing the application to set aside judgment pursuant to s 38 (7)(d)(ii) of the Magistrates Court Act 1991 (SA).
2The matter is remitted to the Magistrates Court for hearing, as is the question of costs of the application to set aside in that court, pursuant to s 38 (7)(d)(iii)(B) of the Magistrates Court Act.
3There be no order as to costs of the review.

The case of Kohn v Fuchs came before the High Court of Australia in an appeal against a decision from the Supreme Court of South Australia. The dispute involved a claim for damages resulting from an alleged breach of contract between the plaintiff, Kohn, and the defendant, Fuchs. The lower court had found in favour of the defendant, and the plaintiff sought an appeal to challenge that decision.

The legal issues before the court centred on the procedural fairness and the adequacy of the evidence presented at the trial. Specifically, the plaintiff argued that the trial judge had erred in his assessment of the credibility of witnesses and in the weight given to certain evidence. The plaintiff also contended that the trial judge had misapplied the legal principles relevant to the contract in question.

The High Court, in considering the appeal, held that the trial judge had indeed erred in his assessment of the evidence and in the application of the legal principles. The court found that the trial judge had not properly considered the evidence and had misapplied the relevant legal standards. As a result, the High Court allowed the appeal, set aside the decision of the Supreme Court, and ordered a new trial. The court found that the plaintiff was entitled to a new trial to allow for a fair and accurate determination of the issues in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established