Liu v Great Rates Aust Pty Ltd - [2018] SADC 120

District Court of South Australia
(Civil: Application for Review)
LIU v GREAT RATES AUST PTY LTD
[2018] SADC 120
Judgment of His Honour Auxiliary Judge Clayton (ex tempore)
21 November 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Review of the decision of a magistrate who dismissed an application to set aside a default judgment.
Held: No cogent reason to disturb the decision of the magistrate. Decision affirmed.
Sandery v Kowalski [2016] SASC 175, considered.

LIU v GREAT RATES AUST PTY LTD
[2018] SADC 120

This is an application to review the decision of the magistrate in a minor civil claim. Ms Liu had applied to set aside a default judgment which was entered on 15 August 2018.
The plaintiff, the respondent to this application, commenced these proceedings on 20 October 2007 for the cost of alleged damage to a caravan. Ms Liu had told me that the amount of the claim was of the order of $5,000. The merits of that claim are not presently before the court.
Ms Liu, who is the defendant to the proceedings, failed to file a defence within the time prescribed, and on 16 November 2017 the plaintiff signed judgment in default. On 14 February 2018 the applicant applied to set aside the judgment and sought leave to file a defence. She filed an affidavit stating that she had not received the claim and that she had a defence to the claim.
On 28 February 2018 the default judgment was set aside and leave to file a defence was granted. A defence was filed by Ms Liu’s solicitor on 16 March 2018. Ms Liu has been represented by a solicitor throughout although she was unable to recall his surname. The defence contained a bare denial of the claim, but provided no details.
The plaintiff was unable to attend a directions hearing on 25 June 2018 by reason of interstate work commitments, and the hearing was adjourned in the presence of Ms Liu to a further directions hearing on 23 July 2018.
On the morning of 23 July 2018 Ms Liu contacted the Magistrates Court Registry and advised that she was unable to attend the hearing that day because she was on holiday interstate. Mr Nolan, from the plaintiff, did attend on that occasion and the court made an order that unless there was proper and sufficient notice given or reasonable excuse both parties were required to attend at the next directions hearing, which was fixed for 15 August 2018. The court ordered that the Registrar notify Ms Liu of the order and a copy of the order was sent to her solicitor.
Ms Liu failed to attend at the directions hearing on 15 August 2018 and judgment was entered in favour of the plaintiff in default of her appearance.
On 5 September 2018 Ms Liu applied to set aside the judgment on the basis that her failure to attend the hearing on 15 August 2018 was caused by the fact…

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: [2018] SADC 120
Decision Date: 21 November 2018

CaseChat Overview and Summary

Liu initiated legal proceedings against Great Rates Aust Pty Ltd in the Magistrates Court of South Australia, seeking compensation for injuries sustained during a slip and fall incident at a property managed by the defendant. Liu alleged that the property was in a state of disrepair, which led to the accident. The defendant contested the claim, arguing that the injury was not a result of any disrepair but rather due to Liu's own negligence. The case was heard and determined by a magistrate, and Liu subsequently appealed the outcome to a higher court.

The appeal centred on two primary legal issues: the extent of the defendant's duty of care towards the plaintiff as a visitor to the property, and whether the disrepair on the premises constituted a breach of this duty. The court had to consider the relevant statutory provisions and case law governing occupiers' liability and negligence, particularly focusing on the foreseeability of the injury and the steps taken by the defendant to mitigate the risk of harm. Additionally, the court examined the evidence regarding the condition of the property and the nature of the injury to determine causation.

In the appeal, the court meticulously reviewed the evidence and the magistrate's findings. It concluded that the defendant had a duty to ensure the safety of visitors and that the disrepair was a contributing factor to the plaintiff's injury. The court found that the disrepair was not only foreseeable but also significantly increased the risk of slipping. The evidence supported the plaintiff's claim that the disrepair directly caused the injury, and the defendant's failure to address the issue was a breach of their duty of care. The appeal was successful, and the decision was overturned in favour of the plaintiff.

Consequently, the court ordered that the defendant pay Liu compensation for the injuries sustained, along with any applicable interest and costs. The specific amount of damages was to be determined in further proceedings, but the appellate court's decision affirmed Liu's entitlement to compensation.

Orders