Miranda v Victuallers Suppliers (SA) P/L & Anor No. Scgrg-98-1547 Judgment No. S11

MIRANDA v VICTUALLERS SUPPLIERS (SA) PTY LTD
and ANOR
[1999] SASC 11

Magistrates Appeal: Civil

PERRY J (ex tempore) By a purported notice of appeal filed on 17 November 1998 the proposed appellant, Mr Miranda (whom I will call “the appellant”), seeks to appeal from a judgment against him pronounced in the Magistrates Court in which he was held liable on a guarantee collateral to a lease. The liability was quantified in the sum of $16,118.51, which the learned special magistrate found to be due by the appellant to the plaintiff, Victuallers Suppliers (SA) Pty Ltd (“Victuallers Suppliers”).
A co-defendant in the action, Randall Tomich, who is the second named respondent to the proposed appeal, was held liable for a limited amount of $422.95, on the footing that he was a co-guarantor with the appellant. The reason for the distinction between the position of the two guarantors appears in the magistrate's reasons for judgment which were published on 25 September 1998, and it is unnecessary to go into them at this stage.
When he delivered his reasons, the learned special magistrate refrained from entering formal judgment, presumably on the basis that at that time there was some uncertainty as to just how much it was that the plaintiff was by then claiming.
That uncertainty was removed by argument which has now taken place before me in the course of which the appellant, through his counsel Mr Agresta, concedes that the proposed notice of appeal is lodged on the basis that the judgment is in fact for $16,118.51. Mr Riggall for Victuallers Suppliers confirms that that in fact is the amount which was, at the end of the day, pursued by his client in the court below.
The matter came on again before the learned special magistrate on 30 September 1998 when he dealt with a question of costs. His fiat with respect to that aspect of the matter appears as a handwritten note on file, dated on that day. The note however does not confirm the entry of judgment on the substantive claim, notwithstanding the fact that the formal entry of judgment for that amount was adjourned from 25 September 1998.
That may be a procedural irregularity which I should cure. I do so now. The appellant's notice of appeal asserts that the substantive judgment was pronounced on 30 September 1998, not just the order as to costs. In other words, the very lodgment of the proposed notice of appeal acknowledges the fact that there is an appealable judgment.
In those circumstances, without further standing on ceremony, the appropriate order, which I now make, is that to the extent necessary, the Registrar of the Magistrates Court enter up a judgment in accordance with the usual procedures of that court, speaking as of 30 September 1998, in favour of Victuallers Suppliers (SA) Pty Ltd against the defendant Miranda in the sum of $16,118.51 and against the defendant Randall Tomich in the sum of $422.95. If it has not been so entered up, he or she is also to enter up the judgment for costs in terms of the magistrate's note on file of 30 September 1998.
In addition, on the contribution proceedings between the defendants, there should be a formal order recorded in the court below in favour of the defendant Tomich in terms that he be indemnified by the defendant Miranda for any amount which Tomich may be called upon to pay to the plaintiff, with respect to the judgment entered against Tomich.
Although the learned special magistrate stood over the question of interest when he delivered his reasons on 25 September 1998, that does not appear further to have been pursued. It follows then that the plaintiff is not entitled to interest as part of the judgment, as opposed to interest running from the date of judgment, unless there is such an entitlement which he may avail himself of under the rules of court. I do not pause to examine the Magistrates Court rules to ascertain the position as to that question, which was not argued before me.
I have before me two applications. One is by Victuallers Suppliers dated 5 January 1999 (court file document 2) seeking an order dismissing the appeal on the ground that it is “out of time and therefore incompetent”.
Then the appellant applies, in an affidavit of Mr Miranda sworn on 12 January 1999, for an extension of time within which to lodge the notice of appeal.
If the effective date of the judgment had been 25 September 1998, a notice of appeal should have been filed on or before 9 October 1998, or possibly Monday 12 October 1998 if the date upon which the judgment or reasons for judgment were published is to be excluded.
If the effective date of the judgement is as I have now directed it to be, namely, 30 September 1998, the period is reduced by five days.
It follows that the purported notice of appeal is lodged considerably out of time. The proposed appellant was aware of that at the time the notice was brought into court on 17 November 1998, as the first of the orders sought in the notice is an extension of time within which to bring the appeal.
It is unnecessary for me to canvass at any length the reasons for judgment of the learned special magistrate. But insofar as his findings are relevant to the question now before me, it is sufficient to observe that on all relevant questions of credit he disbelieved Mr Miranda and believed the witnesses called on behalf of Victuallers Suppliers.
There is no challenge in the notice of appeal to the findings as to credit. Rather the notice of appeal deals with other matters, such as the suggestion that the learned magistrate erred in failing to hold that there was no evidence that the appellant understood the terms of the proposed lease. Of course, a failure to understand the terms of a contract is no answer in law to its enforceability. It is different if an allegation is made of non est factum, which must be raised by specific plea, or of unconscionability having regard to the well known principles attaching to unconscionability in equity.
It does not seem to me that the grounds of appeal which have been raised, have any strong prospect of success. That observation includes the ground which raises the validity of the Statutes (Amendment) Enforcement of Contracts Act 1982, a challenge which has provoked an application by the Crown to intervene.
But while I consider that the prospects of the appeal succeeding are weak, they are not hopeless.
On the other hand, there are indications that the appellant is attempting to delay and put off the day of final reckoning. Some support for that view is derived from the fact that he did not trouble to lodge a defence to the claim until the first day of the hearing in the court below.
Furthermore, given that he was in court at the time when the reasons were handed down on 25 September, as was his solicitor, the grounds upon which he suggests that his subsequent delay in lodging the notice of appeal should be excused are unconvincing. I do not pause to go into those grounds, which are set out in the affidavit to which I have referred.
Mr Riggall has put everything that can be put in support of his opposition to the grant of an extension of time to appeal, and in support of his application to have the proposed appeal struck out. However, Mr Keen’s client takes a more ambivalent view of the matter, and neither supports or opposes the stand taken by Victuallers Suppliers.
Against that somewhat unsatisfactory background it is necessary to rule on the applications.
By a fine balance, and notwithstanding the hesitation I have as to the merits of the appeal and of the conduct of the proposed appellant between 25 September and now, I think it right that he should not be altogether shut out of pursuing an appeal. On the other hand, I think that the time has come when he must demonstrate his good faith by paying some amounts, in the first place with respect to the costs of the applications which I have heard, and in the second place, against the outcome of the appeal.
I order that on the application of the appellant, the time for the lodgment of the notice of appeal be extended to and including 17 November 1998. That order is subject to the appellant, Mr Miranda:

(a)paying to the solicitors for each of the two respondents, in each case the sum of $500 which I fix as the costs of each of the respondents of and incidental to the application for an extension of time to appeal and the hearing before me, that is, two payments of $500, one to each of the two respondents, the payment to be made on or before Wednesday 20 January 1999;
(b)within the same time, paying into this Court the sum of $5,000 to abide the event of the appeal.

If either or both of the conditions which I have just ordered is or are not fully complied with, the appeal stands dismissed out of this Court without further order.
In the event that the appeal proceeds, it will proceed on the basis of the notice of appeal filed on 17 November 1998 being court file document 1.
The making of the orders which I have just referred to precludes the appeal being disposed of during the January sessions. In any event, there would be a difficulty in having the matter heard during these sessions, as the transcript was not typed up in the court below, although attempts are being made to see to that exercise. Also the exhibits have been handed back to the parties and will need to be retrieved.
No doubt if it were not for the other matters which have prompted me to make the orders to which I have just referred, the question of the availability of the transcript and the exhibits might have been surmounted in time for me to have heard the appeal. But it will have to go off until February.
Accordingly, I further order that, subject to compliance with the conditions to which I have referred, the appeal be listed for hearing in the February session of the court for the hearing of Magistrates and Miscellaneous Appeals, or so soon thereafter as counsel may be heard.
In the event that the conditions are complied with and that the appeal goes forward, I give leave to the respondents, that is, Victuallers Suppliers and Tomich, to lodge a cross appeal or an appeal in their own right on or before Wednesday 27 January 1999, as they may be advised.

[1999] SASC 11

13 January 1999