Rusinski v Jamieson - [2025] SASCA 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
RUSINSKI v JAMIESON & ORS
[2025] SASCA 51
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice Bleby)
16 May 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - WARRANTS OF SEIZURE AND SALE
This is an application seeking leave to appeal the decision of a single judge of this Court, dismissing her application for a stay of enforcement pending appeal from a decision of the Magistrates Court.
The proceedings concern a default judgment of the Magistrates Court entered in favour of the respondents for approximately $25,000 for unpaid childcare fees owed by the applicant to the respondents.
The applicant made two applications in the Magistrates Court to set aside the default judgment, both of which were dismissed.
The applicant has not satisfied the judgment sum and a warrant of sale has been issued over the applicant’s residential property.
Held, per the court, dismissing the applications for a stay of enforcement pending trial and leave to appeal:
1.The proposed appeal does not raise any issue of general importance or principle and is, in any event, without merit.

RUSINSKI v JAMIESON & ORS
[2025] SASCA 51
Court of Appeal – Civil: S Doyle and Bleby JJA

THE COURT: By application dated 29 April 2025, Ms Rusinski has sought leave to appeal to the Court of Appeal from a decision of a single judge of this Court dismissing her application for a stay of enforcement pending appeal.
These proceedings have their genesis in a default judgment of the Magistrates Court entered against Ms Rusinski and in favour of the respondents on 6 October 2023, for an amount of approximately $25,000. The judgment sum related to fees for childcare services provided by the respondents during 2021 and 2022.
Ms Rusinski subsequently made two applications in the Magistrates Court to set aside this default judgment. Both applications were beset with delays and default, and were ultimately dismissed. The second application was dismissed by a magistrate on 11 November 2024. The magistrate delivered some ex tempore reasons for dismissing the application, explaining in some detail her reasons for concluding that Ms Rusinski had both failed to provide a proper explanation for her defaults and delays, and failed to demonstrate that she had a reasonable basis for defending the claim against her. In her Honour’s view, it was not in the interests of justice that the default judgment against Ms Rusinski be set aside.
Ms Rusinski was not represented during the course of the proceedings before the Magistrate, and indeed did not attend the hearing at which her second application was ultimately dismissed. However, the magistrate’s reasons…

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 Rusinski v Jamieson

Details

AGLC: Rusinski v Jamieson [2025] SASCA 51
Case: [2025] SASCA 51
Decision Date: 16 May 2025

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Doyle and Bleby JJ, heard an appeal concerning the enforcement of a judgment. The dispute arose from an application by the respondent, Jamieson, to enforce a judgment against the appellant, Rusinski, by way of a warrant of seizure and sale of property. The appellant sought to set aside this warrant.

The primary legal issue before the Full Court was whether the Supreme Court had the power to set aside a warrant of seizure and sale that had already been executed, particularly when the execution had resulted in the sale of the appellant's property. A secondary issue concerned the proper approach to applications to set aside such warrants, and whether the court retained inherent jurisdiction to grant relief even after execution.

The Court considered the nature of a warrant of seizure and sale as a process of execution rather than an order of the court. It was held that once executed, the warrant itself was spent, and the court could not set aside a spent process. However, the Court affirmed that it retained an inherent jurisdiction to grant consequential relief, such as ordering the return of property or its proceeds, where the underlying judgment or the execution process was found to be irregular or void. In this instance, the Court found no basis to set aside the warrant or to order the return of the sale proceeds, as the judgment was valid and the execution process had been conducted without irregularity.

The appeal was dismissed.

Orders