Nash v Field - [2019] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
NASH v FIELD
[2019] SADC 92
Judgment of His Honour Judge Durrant
3 July 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Applications for Review of Minor Civil Decisions in relation to (1) extending the six year period for execution of a judgment; and (2) to stay execution of the extended judgment and a further application to stay execution of a Warrant for Sale. Good reasons existed to extend the time for execution and no good reasons exist to stay execution.
Applications for review dismissed.
Application for stay refused.
Magistrates Court Act 1991 s 38(1)(6); Enforcement of Judgments Act 1991 s 7, s 17; District Court Civil Rules R.131; Magistrates Court Rules 1992 R.121; Bankruptcy Act 1966 (Cth) s 60, referred to.

NASH v FIELD
[2019] SADC 92
THE COURT DELIVERED THE FOLLOWING JUDGMENT:
Introduction

The applicant, Peter Nash, has filed three applications in this Court.
First, on 29 April 2019 Mr Nash filed an Application to Review a Minor Civil Decision of an order made by Magistrate Kennewell granting leave to enforce an enforcement process in respect of a judgment that was more than six years old (the First Review application).
Second, on 29 April 2019 Mr Nash filed an Application to Review a Minor Civil Decision of the refusal by Magistrate Adair to order a stay of execution of a Warrant for Sale over a property owned by the appellant at 459 South Road, Keswick (the Second Review application) (the subject property).
Third, on 29 April 2019 Mr Nash filed an Interlocutory Application pursuant to Rule 131 of the District Court Civil Rules 2006 to, amongst other things, restrain the Sheriff from executing the Warrant for Sale referred to above and restore him to possession of the subject property (the stay application).
The First Review application and the Second Review application come before this Court pursuant to s 38(6) of the Magistrates Court Act 1991, whereby this Court (constituted by a single Judge), may, on the application of a party dissatisfied with a judgment given in a Minor Civil Action, review the decision.
In undertaking a review of a minor civil decision, this Court is entitled to inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence. This Court may, if it thinks fit, rehear evidence adduced before the Magistrates Court.
Having undertaken a review, this Court may:
(a) affirm the judgment; or
(b) rescind the judgment and substitute a judgement that the Court considers appropriate; or
(c) if the review arises from a default judgment or a summary judgment, rescind the judgment, and -
(i) substitute a judgment that the Court considers appropriate; or
(ii) remit the matter to the Magistrates Court for hearing or further hearing.
In undertaking and determining these reviews, this Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
A decision of this Court on a review is final and not subject to appeal.
Background
In reasons for ex-tempore decision dated 7 March 2019, Magistrate Adair summarised the history of proceedings between the parties as follows:
….
5.A brief history of this action is, that on 16 November 2011 a magistrate entered summary judgment in favour of the plaintiff in the sum of $4875.71 plus costs, following the failure of the defendant to attend upon a trial which had been listed for hearing on that day. The defendant sought a minor civil review of the judgment and, on 17 September 2014, His Honour Judge Beazley of the District Court published his decision following that review. His Honour affirmed the judgment and orders of the learned Magistrate, and dismissed the application.
6.The judgment was not paid and on 13 March 2015 the plaintiff requested the Registrar issue an Investigation Summons. Attempts to serve this summons were unsuccessful. The defendant’s wife advised the Sheriff’s Officer that he was no longer a resident at the address on the court file and was residing in his business premises at “459 South Road Keswick”. On 30 April 2015, a request was made by the Sheriff for the re-issue of the Investigation Summons for service at 459 South Road Keswick.
7.The Investigation Summons was successfully served on 13 May 2015. The defendant failed to appear on that summons and on 18 June 2015 an order for the issue of a Warrant of Arrest was made. An attempt was made to execute the Warrant on 1 July 2015. Affidavit material filed by the Sheriff indicated that the Warrant could not be served on the defendant. The Execution Report filed by the Sheriff indicated that the Sheriff had spoken to the defendant via telephone but the speaker denied it was the defendant speaking. The Sheriff claimed to have left a number of messages on the defendant’s voicemail, to a recorded message from a male with the same voice. Three attempts were made in June and July 2015 to serve the Warrant of Arrest. All were unsuccessful.
8.Shortly prior to this, on 12 December 2014, and following an incident at his place of work or abode, the defendant was charged with a number of offences, including Hindering the Sheriff or Sheriff’s Officer and Committing Assault Occasioning Harm – Aggravated, with respect to an assault on the Sheriff. Following a trial in April 2016 the defendant was convicted of the charges and sentenced to a period of imprisonment of 10 months which was suspended. Following an appeal to the Supreme Court, His Honour Chief Justice Kourakis upheld the conviction and sentence of imprisonment and revoked the suspension. The defendant commenced to serve the sentence of imprisonment on 25 September 2018. The non-parole period of 5 months ended on 25 February 2019.
9.On 22 August 2018, the plaintiff filed an application for leave to enforce the judgment in this action.
10.An ex-parte in-Chambers order granting leave to the plaintiff to enforce the judgment was made on 22 August 2018 by another magistrate. No reasons were given.
The extension of time for enforcement
Rule 121 of the Magistrates Court Rules 1992 requires that the Registrar must not enforce an enforcement process in respect of a judgment that is more than six years old, except at the leave of the Court, which leave must only be given if the judgment creditor establishes proper reasons to explain the delay in enforcement.
In an affidavit, sworn 20 August 2018, supporting an application to extend the time for enforcement, the respondent’s solicitor deposed to: the chronology detailed above and the finalisation of the minor civil review by Judge Beazley in September 2014; the previous attempts to enforce the judgment on an ineffective basis due to the inability to serve process on the defendant; and, the appointment by the plaintiff of solicitors in July 2018 to undertake an enforcement of the judgment.
Magistrate Kennewell considered the application to extend the time for enforcement of the judgment ex-parte and in chambers. She made an order on 22 August 2018 granting leave to the respondent to enforce the judgment, which was then more than six years old. No reasons were given.
The applicant says, in relation to that order, that:
1.he was denied natural justice because the order for extension was made in chambers without hearing the parties;
2.the Magistrate failed to provide reasons;
3.the Magistrate failed to have regard to the judgment debt being more than six years old;
4.no reason was proffered to explain the delay in enforcement;
5.the application was not served on the appellant;
6.the Magistrate failed to have regard to the conduct of the respondent towards the appellant; and
7.the Magistrate failed to have regard to the alleged bankruptcy of the Appellant at the time of the judgment debt.
The application for a stay
The applicant requested the Magistrates Court to make an order that the order extending time to enforce the judgment made by Magistrate Kennewell be stayed or rescinded. Specifically, a Warrant for Sale over the subject property had been issued by the Magistrates Court on 27 August 2018 under s 7 of the Enforcement of Judgments Act 1991 which authorised the sale and seizure of the subject property to satisfy the judgment entered by Magistrate Millard on 16 November 2011.
The subject property is a commercial property at Keswick and is estimated by the Sheriff to be worth $500,000 to $600,000. There is also on the title of the subject property, a charge from the Legal Services Commission to secure legal fees repayable by Mr Nash to the Commission. The subject property is otherwise unencumbered.
Magistrate Adair refused the application for a stay or rescission and by reasons delivered ex-tempore on 7 March 2019, found:[1]
[1] Field v Nash AMCCI-11-3282 Reasons for Extempore Decision of Magistrate Adair dated 7 March 2018.
In relation to the Warrant of Sale, the defendant provided no evidence that he was prepared, or was likely to, pay the judgment sum in any way, either in a lump sum or part payment. Indeed, his statements during the course of the hearing were that he objected to the original decision of the magistrate on the basis it was ‘wrong’ and he did not intend to pay the judgment sum. It was explained to the defendant that the magistrate’s decision had been the subject of a review, been affirmed by the District Court and that his view about the correctness of the decision was not a basis on which to stay the Warrant of Sale. The defendant failed to provide any other basis as to why the Warrant of Sale should be stayed.
The applicant seeks a review of that decision on the following grounds:
(1)the Magistrate erred in denying him natural justice;
(2)the Magistrate failed to have proper regard and give proper weight to his application and evidence;
(3)the Magistrate had not provided any reasons for the previously ordered extension of time;
(4)the Magistrate failed to have regard to the debt being older than six years and the fact that civil litigation must come to an end;
(5) that the Magistrate failed to have regard to the disadvantage to the appellant as the respondent was represented by legal counsel and he was not;
(6)the failure by the respondent to serve the original application for an extension of time;
(7)the failure of the Court to act fairly;
(8)the failure of the Court to have regard to sharp practice and unconscionable conduct towards the appellant as he was in custody; and
(9)the failure of the Magistrate to find that the appellant was at the time bankrupt and not liable for the respondent’s debt.
The Sheriff subsequently entered possession of the subject property. Any steps to sell the property to satisfy the judgment debt have been put on hold pending the outcome of the First and Second Review Applications and the stay application.
Bankruptcy
During the hearing on 30 May 2019, I informed Mr Nash that there was no evidence to support his contention that he was bankrupt at the time of the recording of judgment by Magistrate Millard in November 2011. I explained to him that, if he was a bankrupt at the time that judgment was entered or thereafter, it may be an important matter for me to have regard to in determining the First and Second Review applications. Mr Nash insisted that he had been bankrupt and I therefore adjourned the hearing until 14 June 2019 and again until 28 June 2019 to allow Mr Nash or the respondent to file evidence relating to the issue of bankruptcy.
The solicitor for the respondent read an affidavit, sworn 5 June 2019, deposing to a search he had caused to be undertaken of the National Personal Insolvency Index maintained by the Australian Security Authority. That search related to the applicant Peter Philip Nash and was carried out to ascertain if Mr Nash had been declared bankrupt during the period 30 May 2009 and 30 May 2019. The search was exhibited and showed that no record of bankruptcy in respect of Mr Nash had been retrieved by the Australian Security Authority.
At the hearing on 14 June 2019, Mr Nash read an affidavit affirmed by him on 13 June 2019 which exhibited a sealed order of the Federal Magistrates Court dated 24 August 2011 in File Number (P) ADG79/2011 made by Magistrate Simpson for sequestration against the Estate of Peter Philip Nash. Mr Nash again insisted that he had been bankrupt and that the Order proved he was bankrupt at the time of judgment by Magistrate Millard and that I should grant him the relief he had sought in the First and Second Review Applications and the stay applications.
Given the incongruity between the bankruptcy search produced to the Court and the Order of the Federal Magistrates Court, I again adjourned the hearing until 28 June 2019 to provide the parties the opportunity to provide any further information relating to the alleged bankruptcy of Mr Nash. I directed that Mr Nash be able to attend at the subject property under supervision of the Sheriff to search for any relevant documents. I directed that both parties be provided with a copy of the transcript of the hearing before me on 14 June 2019. Further, I allowed the inspection by Mr Nash at the Registry of this Court of Magistrates Court file AMCCI-11-3282, District Court file 44 of 2012 and District Court file 478 of 2019. Mr Nash inspected those files, which included all correspondence with the Courts, on 26 June 2019 and at that time he was provided with copies of a number of documents he requested.
By affidavit sworn 21 June 2019, the solicitor for the respondent deposed:
(1)he had requested access to the file of the Federal Magistrates Court (P) ADG78/2011:
(2)he had been informed by the Federal Court of Australia that:
(a)    Mr Nash had attended at the Federal Court the previous week and had sought the sealing of an order;
(b)    the Order of the Magistrate Simpson dated 24 August 2011 had been appealed by Mr Nash and was consequently set aside; and
(c)    obtaining documents from File Number (P) ADG79/2009 would not be useful and that the Court would be provided the Order and Reasons for judgment in File Number (P) SAD221/2011.
Mr Nash continued to submit that at the time when judgment was entered by Mr Millard the sequestration order was effective and he was bankrupt and that the judgment should not have been recorded.
The appeal in the Federal Court was heard on 27 February 2012 at which Mr Nash appeared in person. By Order of Finn J made 29 June 2012, the orders of Federal Magistrate Simpson were set aside and the creditor’s petition was dismissed.[2]
[2] Reasons for Judgment Finn J, Federal Court of Australia, 29 June 2012 SAD221 of 2011.
The Bankruptcy Act 1966 (Cth) provides that where a debtor has committed an act of bankruptcy, the Federal Court of Australia may, on petition presented by a creditor, make a sequestration order against the debtor’s estate.[3] The issue considered by Finn J was whether the document served on Mr Nash was, as required, a bankruptcy notice under the Act. His Honour found a defect or irregularity in the notice served and that an essential requirement had not been followed. He therefore found that no act of bankruptcy had been committed under s 40(1)(g) of the Bankruptcy Act and consequently set aside the order of the Federal Magistrate and dismissed the creditor’s petition.
[3] Section 43(1) Bankruptcy Act 1966 (Cth).
Section 60(1)(b) of the Bankruptcy Act provides that a Court having jurisdiction under the Bankruptcy Act may, at any time after presentation of a bankruptcy petition and upon such terms as it thinks fit, stay any civil legal process, against the person or property of the debtor.
No evidence of any order of a competent Court staying Magistrates Court of South Australia action AMCCI-11-3282 was produced to the Court. At the trail before Magistrate Millard in the action, Mr Nash failed to attend. On the review issued by Mr Nash and heard on 3 April 2012, Judge Beazley found that the judgment recorded by Magistrate Millard was regularly obtained and affirmed the judgment. I have read the transcript of the hearing before Judge Beazley. Mr Nash does not mention the sequestration order made on 24 August 2011 or the appeal heard a few weeks earlier on 27 February 2012.
Mr Nash provided me with a letter from the Australian Financial Security Authority confirming that the National Personal Insolvency Index would have recorded the sequestration order made against him during the period 24 August 2011 to 29 June 2012 when it was set aside. It also confirmed that once Finn J set aside that order, the Index recorded that Mr Nash had never been bankrupt.
On 17 September 2014 (and after the setting aside of the sequestration order) Judge Beazley pursuant to s 38(7)(d) of the Magistrates Court Act affirmed the judgment and orders of Magistrate Millard.[4]
[4] Ibid at 106.
It is unnecessary for me to find whether Mr Nash deliberately misled Judge Beazley on 3 April 2012 or me on 14 June 2019. I note that he accepted at the hearing on 28 June 2019 that he had failed to draw the order of Finn J to my attention on the previous occasions but said that the order was irrelevant.
Application to stay execution
The stay application sought a number of orders as follows:
(1) that the ex-parte enforcement orders of the Magistrate be set aside;
(2)that the Sheriff and his agents be restrained from enforcing the enforcement order;
(3)that the Sheriff or his agents be restrained from preventing the appellant from having unfettered access to the subject property and the use of remedial plant equipment and other medications stored at the subject property;
(4)that the Sheriff or his agents be restrained from stopping the appellant having unfettered access to the subject property to feed and care for his cats;
(5)that the Sheriff be prevented from otherwise trapping, injuring, touching, detaining, poisoning or killing those cats;
(6) that the appellant be permitted to resume living at the subject property;
(7)that the Sheriff reinstate the subject property having changed the locks as part of entering into possession; and
(8) that the Sheriff produce his file to the appellant.
The applicant relied upon s 17 of the Enforcement of Judgments Act 1991 which allows the Court to order a stay of execution if satisfied that there is proper reason for granting the stay on such terms as it considers appropriate.
Conduct of this review
In determining the First and Second Review applications, I have conducted an inquiry as provided for by subsection 38(1) of the Magistrates Court Act 1991. I have proceeded in a broadly inquisitorial and not adversarial way to determine the issues in dispute and to act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.
Further, I have considered the application for extension of time and to stay the Warrant afresh and I have had regard to the matters put to me by the applicant during the hearing, the history of the matter, the Magistrates Court file and the findings of the learned Magistrate set out above.
Consideration
At the hearing, I invited Mr Nash to tell me what he would have said to Magistrate Kennewell, in respect of the application for an extension of time, if he had had the opportunity.

Mr Nash said he would have told the Magistrate the debt was over six years old and that there were no special reasons to extend time and that nobody informed him that service of an investigation summons had been ineffective or that an arrest warrant had been issued. He said he would have told the Magistrate that he had moved house, that payment of the debt was “not front of mind”, that he had not paid because he had a lot of other things going on including the death of his brother and an assault against him, that he did not have the paperwork about the debt and that he had been incarcerated for a period of the relevant time. He also said that he would have told the Magistrate that his circumstances demonstrated hardship. In summary, he says he would have told the Magistrate that paying Mr Field was “the last thing on his mind”.
I asked Mr Nash to also address, afresh, the application for a stay heard by Magistrate Adair and make submissions in respect of the stay application. Mr Nash repeated the matters above and referred to in his applications before the Court. He referred to his alleged bankruptcy (which I have dealt with above) and what he described as the law of hardship. In that respect and as noted earlier, s 17 of the Enforcement of Judgments Act 1991 allows the Court to stay execution of a judgment. That broad discretion is not to be exercised lightly and the Court must have regard to both the position of the creditor and debtor. Also, the Court must have regard to any arrangements made or proposed for payment of the judgment debt.
I asked Mr Nash on a number of occasions during the three hearings before me whether he intended to pay the judgment debt. Mr Nash obfuscated and repeated, in part and generally, what he had already told me about the reasons why he had not paid and why the order extending time should not have been made. He added that the charge by way of Warrant which had been placed on the title of the subject property had prevented him from recently raising funds from a financier to pay the judgment debt. He blamed the failure of the Sheriff and the respondent to serve him or obtain payment from him as the reason for these proceedings.
I reminded Mr Nash that at an earlier hearing in this matter on 2 May 2019, before the Chief Judge, he had said he owned a car which was stored on the subject property and which could be sold to satisfy the debt. I informed Mr Nash that the Sheriff had provided a report to the Court that access to the subject property had been provided to a third party known to Mr Nash in order that he could view the vehicle. Mr Nash told me that he and the potential purchaser had inspected the vehicle and agreed a purchase price but the Sheriff had not allowed that person to take the vehicle from the subject property that day and the sale therefore did not proceed.
It would be unfortunate if the subject property must be sold to satisfy the judgment creditor, given the quantum of the debt compared to the value of the subject property. Having said that, I must have regard to the creditor also. These applications relate to a debt owing since 16 November 2011 for professional services provided by the respondent to the applicant. The respondent was entitled to ask the Court to grant him leave to enforce its judgment and to exercise his rights of enforcement, including in respect of a sale of the subject property. Further, the respondent told me that the applicant had made no attempt, at any time since 16 November 2011, to come to any arrangement for payment of the judgment debt by instalment or otherwise. As noted, the applicant has a significant asset which can be sold to satisfy the debt and has not indicated any intention to pay.
Mr Nash was evasive and argumentative during the hearing as to whether he would pay or how he planned to pay the judgment debt. He submitted that he was being treated unfairly by the Court, the Sheriff and by the respondent and that the law should not allow for his property to be sold to satisfy the debt. He failed to detail any meaningful or credible offer to pay. He repeatedly blamed the respondent for his predicament and said that the debt was old and the Sheriff could have found him to serve an investigation summons and that he had not avoided service. He alleged that the Registries of the Magistrates Court and the District Court had deliberately removed documents from the Courts’ files. He wanted to cross-examine the respondent to show that he had been treated unfairly. His statements confessed the debt but avoided responsibility for the non-payment. His behaviour must be seen against the background of his ownership of the subject property - worth many times the value of the debt - and the motor vehicle to which I have referred. I also have had regard to his lack of candour concerning his alleged bankruptcy in considering whether to order a stay of execution.
Findings
I find that as a consequence of the order of Finn J, Mr Nash was not a bankrupt. I find that no order under s 60(1)(b) of the Bankruptcy Act 1966 (Cth) was made staying the Magistrates Court action. Thereafter, and in any event, Judge Beazley affirmed the judgment of Magistrate Millard.
I find that there were good reasons to extend the time for enforcement of the enforcement order as follows:
(a) the minor civil review was not finalised until September 2014;
(b)previous attempts to enforce the judgment had been ineffective due to the inability to serve process on the defendant;
(c)the plaintiff appointed new solicitors in July 2018 to enforcement the judgment;
(d)a reasonable apprehension and genuine suspicion exists that the defendant was seeking to avoid service;
(e)the defendant had served a period of time in custody and during that period was unable to be served;
(f) the defendant has taken no steps to pay the judgment; and
(g)the defendant has not proffered any property in order to satisfy the judgment.
I find also that no good reason exists to stay execution of the Warrant for Sale or to make any order restraining the Sheriff from executing the Warrant. No proposal to pay has been put and the applicant owns property which can be sold to satisfy the judgment creditor, namely the property at 459 South Road, Keswick.
Costs
In relation to the question of costs this Court, pursuant to District Court Rule 279A(10)(g) may make an order for the costs of the review. In considering that issue I have had regard to s 38(5) of the Magistrates Court Act that there should not be cost orders in minor civil actions unless there are special circumstances.
After hearing submissions from the parties, I am of the view that special circumstances exist for the following reasons:
1.Mr Nash confessed the debt but sought to avoid his obligations to pay;
2.Mr Nash owns assets, including a motor vehicle and a commercial property, sufficient to satisfy the debt;
3.Mr Nash was given a number of opportunities to indicate how he would pay the debt and responded in an evasive manner;
4.Numerous attempts have been made to serve Mr Nash with process to pay the debt; and
5.Mr Nash failed to provide the Court with complete information, of which he was aware, concerning his bankruptcy.
Orders
I make orders as follows:
1. That the applications for minor civil review be dismissed.
2. That the application of Mr Nash dated 29 April 2019 be refused.
3.That the applicant do pay the costs of the respondent in respect of the applications dismissed and refused, including the costs of the hearings on 30 May 2019, 14 June 2019 and 28 June 2019, on a party/party basis.