Philp v DM Aston - [2010] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
PHILP v DM ASTON & CO
[2010] SASC 114
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice White and The Honourable Justice Kelly)
27 April 2010
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - IN GENERAL
Respondent/plaintiff signed judgment in default of defence in the Magistrates Court against appellant/defendant - Magistrate refused an application by appellant to set aside judgment - whether service properly effected 21 days prior to default judgment - consideration of when defendant received claim - whether default judgment irregularly obtained - whether defendant had to show an arguable case where no non-compliance by defendant - consideration of extension of time to appeal to Full Court of the Supreme Court.
Held: extension of time to appeal granted - appeal allowed - Magistrate erred in finding service properly effected 21 days prior to default judgment - Magistrate erred in failing to consider evidence as to defendant's place of residence.
Magistrates Court (Civil) Rules 1992 (SA) r 2, r 47, r 49, r 60, r 64, r 87; Acts Interpretation Act 1915 (SA) s 33; Supreme Court Civil Rules 2006 (SA) r 281, referred to.
Battiste v Mulvaney (Unreported, 7 November 1997, S6419), distinguished.
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; A/S Cathrinehold v Norequipment Trading Ltd [1972] 2 QB 314; Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 238 LSJS 230, considered.

PHILP v DM ASTON & CO
[2010] SASC 114
Full Court: Bleby, White and Kelly JJ
BLEBY J.
Introduction

On 12 August 2009 the respondent to this appeal and plaintiff in proceedings in the Magistrates Court of South Australia (“the plaintiff”) signed judgment in the proceedings against the appellant, the defendant in the Magistrates Court proceedings (“the defendant”), in default of defence. On 17 August 2009 the defendant applied to set aside the judgment by default. On 14 September 2009 a Magistrate refused to set aside the judgment. The defendant appealed to a Judge of this Court against that decision. The appeal was dismissed. The defendant now appeals, with permission, to the Full Court against that order.
The relevant Magistrates Court Rules
Because the appeal raises a question as to the service of the original claim, it is necessary at the outset to set out the relevant Rules of the Magistrates Court with respect to service of a claim. It is also convenient, at the same time, to set out the relevant Rules relating to signing judgment in default of defence and to the setting aside of default judgments.
This was a civil claim requiring commencement of the action by the filing of a claim as provided in Form 2 of the Magistrates Court (Civil) Rules 1992 (SA) (“the Rules”).[1] Rule 42(2) of the Rules required that the claim be served on the defendant.
[1]…

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.

Continue reading Philp v DM Aston

Details

AGLC: Philp v DM Aston [2010] SASC 114
Case: [2010] SASC 114
Decision Date: 27 April 2010

CaseChat Overview and Summary

The case of Philp v DM Aston involves a dispute over a default judgment entered in the Magistrates Court of South Australia. The plaintiff, Philp, sought a judgment against the defendant, DM Aston, in default of a defence. Aston subsequently applied to set aside the judgment on the grounds that the service of the claim was not properly effected 21 days before the default judgment, and that he had not actually received the claim until after the judgment was entered. The application was refused by the Magistrate, and Aston appealed to the Full Court of the Supreme Court, seeking an extension of time to appeal.

The primary legal issues in the case were whether the service of the claim was properly carried out, and if not, whether the default judgment was irregularly obtained. A secondary issue was whether Aston needed to demonstrate an arguable case for setting aside the judgment in the absence of any non-compliance on his part. The court also had to consider whether an extension of time should be granted for Aston to appeal to the Full Court.

The Full Court held that service of the claim was not properly carried out as it was not effected 21 days prior to the default judgment, as required by the rules. The court found that Aston had not received the claim until after the judgment was entered, and thus the default judgment was irregularly obtained. The court further held that, in the absence of any non-compliance by Aston, he did not need to show an arguable case for setting aside the judgment. However, the court denied the application for an extension of time to appeal to the Full Court.

The Full Court set aside the default judgment and remitted the matter to the Magistrates Court for further consideration. The court also noted that the extension of time to appeal was not granted, as Aston had not demonstrated any exceptional circumstances warranting such an extension.

Orders