Regan v Regan
[2011] SADC 34
•24 March 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
REGAN v REGAN
[2011] SADC 34
Judgment of His Honour Judge Tilmouth
24 March 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Appeal from a decision of a Magistrate made in small claims jurisdiction dismissed on merits. Turns on own facts.
District Court Act 1991 (SA) s 42G(2), referred to.
REGAN v REGAN
[2011] SADC 34
This is an appeal from a decision of a Magistrate sitting in the minor claims civil jurisdiction of the Magistrates Court, given on 4 January 2011.
The underlying claim related to an action by the respondent, the mother of the appellant with respect to the costs of a mobile phone she purchased for him. On her case this came about because his credit rating was so poor that he could not obtain a mobile phone service in his own name. On the other hand he claimed during the appeal (at which his mother did not attend) that the telephone itself was a gift to him on account of work he had done for her. However he accepted that he was responsible for payment of the calls.
It is evident that around November 2009 they had a falling out over a dispute concerning a motor vehicle. There have been poor relations between them ever since. He has not seen her except for the appearance in the Magistrates Court at the trial. He said as a result of that dispute he issued proceedings against her and later obtained a judgment for about $5,000 against her. This is apparently subject to appeal, yet to be heard.
The learned Magistrate noted that the last payment by the appellant on the account was in November 2009. It was proved by the tender of a Commonwealth Bank record Exhibit D1. This shows a payment on the 2nd of that month to 3 Mobile of $157.66.
Following their disagreement and prompted by the fact that he was not reimbursing her for the call costs of the ongoing service, she sent him a letter (Exhibit P3) which he acknowledged receiving on 15 November 2009. She gave him three choices, to transfer the phone to another, return it to her, or failing either, she would make a claim against him through the “small claims court”.
His Honour found that Mr Regan did not make any payments for calls for November or December. Nor did he return the phone. As a consequence Mrs Regan had the telephone disconnected in early January 2010.
On appeal it was claimed that this was coincident with the day that she was served the summons over the disputed motor vehicle, 12 January 2010. That may be, but it does not seem to me to matter at all. What is clear is that he had use of the mobile phone and he accepted responsibility for payment of calls he made. For these he had not paid any accounts since November. His mother had it discontinued when he did not respond to her letter. For whatever reason is beside the point; it simply had the effect of mitigating any further losses to her, which in itself is reasonable enough.
The Magistrate found:[1]
[6] I am satisfied that as at the beginning of January 2010, James had made it clear to his mother that he was not prepared to either return the telephone or pay for its use. That was a fundamental breach of the contract. James could not reasonably expect his mother to tolerate his retaining the telephone while refusing to pay the associated charges. In those circumstances, Mrs Regan was entitled to terminate the contract by contacting Mobile 3 and arranging disconnection of the service. The contract between Mobile 3 was a two year contract and could not be terminated.
[1] AMCCI-10-4773, 4 January 2011
His Honour therefore proceeded to enter judgment in a total sum of $1,515, on the basis of $85 per month from December 2009 to September 2010, and then for a period of 10 months at $70 per month from October 2010 until the contract terminated in July 2011. He allowed further sums by way of costs, court fees and attendance.
The contract itself (Exhibit P4) was dated 17 July 2009 for a period of 24 months, therefore ending on 17 July 2011. It provided for a “minimum monthly spend” of $84 in that period. As it turns out, Mr Regan who continued to have use of the phone as he admitted to the Magistrate, managed to have the monthly payment reduced to $70.00.
On appeal the appellant complained that the telephone was not discontinued for non-payment. The fact of the matter is that it was non-payment by him to his mother which was the precipitating cause of disconnection, not payments made or otherwise to the service provider. He then complained that he heard nothing for nine months following the letter of November 2009, when the summons was served upon him. However he provided no response in the intervening period and continued to use the phone. It is not at all surprising his mother would have been reticent before issuing proceedings. He also complained that the Magistrate did not take account of the payment in November 2009, but the reasons expressly show that he did (paragraph [2]). Finally he complains that the summons may have been issued out of spite - that has already been dealt with earlier.
In the result the Magistrate was faced with a dispute about why the phone was put in the appellant’s name, as a gift on the one hand and because of a poor credit rating on the other. Since the appellant admitted he had use of the phone and was liable for calls made of no less than $85 per month and then $70 per month, the precise reason bringing about the arrangement is irrelevant.
No reason has been shown why the decision of the Magistrate was wrong. The findings related earlier were open to him. The plain fact of the matter is the appellant had the use of the phone for which his mother was primarily liable, but for which he agreed but failed to reimburse her for the monthly service fees on calls made by him. The mobile phone was of no benefit to her at all.
For those reasons the appeal is dismissed. There will be no order for costs in this court: s 42G(2) District Court Act 1991 (SA).
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