Marmanidis v Germein

[2017] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

MARMANIDIS v GERMEIN & ANOR

[2017] SASC 103

Judgment of The Honourable Justice Hinton

7 July 2017

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER  - WHERE JUDGMENT OR ORDER MADE IRREGULARLY, ILLEGALLY OR AGAINST GOOD FAITH

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

Application for judicial review of a judgment of a Magistrate refusing an application to set aside a default judgment.

On 24 July 2013 the first defendant filed an originating claim in the Magistrates Court, Minor Civil Division, seeking $2,335.31 plus interest and costs in consequence of damage caused to his Alfa Romeo motor vehicle when it collided, he asserted, with the plaintiff’s BMW motor vehicle in Tynte Street at North Adelaide on or around 21 November 2012.

That claim was purportedly served by pre-paid post by the Registrar upon the plaintiff on 31 July 2013, as permitted by the Magistrates Court (Civil) Rules 2013 (SA). Service upon the plaintiff was taken to be effected on 2 August 2013. The plaintiff did not file a defence within 21 days, with the consequence that as of 23 August 2013 the defendant was entitled to judgment in default.

On 27 August 2013 the defendant sought and obtained judgment against the plaintiff in default. The defendant then turned to enforce the judgment. A warrant of sale was issued on 4 December 2015 in respect of a property owned by the plaintiff in North Adelaide. The property was to be auctioned on 29 July 2016.

On the day immediately preceding that set for the auction the plaintiff applied for orders setting aside the default judgment and staying the warrant of sale. On 28 July 2016 the Magistrate ordered that the warrant of sale be stayed upon the plaintiff paying the sum of $14,768.75 to the Sheriff by 5.00 pm that day. The plaintiff paid $14,768.75 to the Sheriff on the morning of the auction in time to prevent it proceeding.

On 11 October 2016 the Magistrate dismissed the plaintiff’s application to set aside the default judgment and ordered that the money held by the Sheriff, namely the $14,768.75, be paid to the defendant’s solicitors.

The plaintiff applied to this Court for the judicial review of the Magistrate’s order dismissing the application to set aside the default judgment. She contends that the default judgment was not regularly obtained; that the order refusing the application to set aside the default judgment was  infected by jurisdictional error; that the order refusing to set aside the default judgment was, in all the circumstances, legally unreasonable; and that the plaintiff was not afforded procedural fairness by the Magistrate in that all material that she put before the Magistrate was not considered.

Held, allowing the application for judicial review:

1.       The default judgment was not regularly obtained.

2.       An…