Samson v W G Botten & Associates No. Scciv-03-843
[2003] SASC 278
•18 August 2003
SAMSON v W.G. BOTTEN & ASSOCIATES
[2003] SASC 278Magistrates Appeal: Civil
PERRY J (ex tempore) The appellant is one of two defendants to each of nine actions in the Magistrates Court. The actions were instituted by the respondent, a firm of solicitors, seeking payment of legal costs for legal work performed on the instructions of the appellant.
He gave instructions in his capacity as accountant for various lay clients. Ordinarily this would not expose him to liability for payment of the solicitor’s costs but in these cases the solicitor, W.G. Botten & Associates, asserts that he agreed to be personally liable for payment of the solicitor’s costs in parallel with the liability of the various clients.
The matter was listed for trial in the Magistrates Court and was called on for hearing on Wednesday 9 April this year. A few weeks before trial it appears that the appellant terminated the instructions to his solicitor to act in the matter and another solicitor was briefed with late instructions to apply for an adjournment of the trial. That was a Mr Kavanagh.
The magistrate obviously took a poor view of the circumstances leading up to the application to adjourn the trial. He took the unusual step of examining Mr Botten, the proprietor of W.G. Botten & Associates, on oath as to the various communications which had passed between him and the appellant’s former solicitor, Mr Esau, in which Mr Esau had advised in the first place that he was no longer acting, but in the second place, and more importantly, had advised the client, the appellant Mr Samson, that the matter was coming on for trial on 9 April 2003.
The magistrate took the view that Mr Samson had clearly been advised that the matter was coming on for trial and did not accept the suggestion that Mr Samson thought that the matter was coming on only for a directions hearing. Notwithstanding that, he stood the matter over for mention to another date in June and in the meantime ordered the appellant to pay into court $25,000 by 18 June 2003. Failing due payment of that amount, pursuant to the self-executing order, judgment would be entered against the appellant on the various amounts said to be the amounts still due on the claims against him in each of the nine actions. The appellant did not pay the money, and the self-executing order has taken effect with the result that he has recorded against him judgments totalling a little more than $54,000.
When he made the order for payment of $25,000, the trial magistrate indicated that he was ordering payment of that amount by way of security for costs. He separately ordered an amount of $300 to be paid by way of the costs thrown away associated with the adjournment of the hearing on that date.
In my opinion, the magistrate was in error in ordering a substantial payment as security for costs by the defendant. Ordinarily, defendants are not made the target of orders for security for costs. They do not choose to be sued, and are ordinarily entitled to put forward whatever defence they may have, without pecuniary penalty as the price of doing so.
On the other hand, it is not uncommon in the context of applications for summary judgment or on a summons specially endorsed, that a price would be put upon the lodging or maintenance of a defence by a defendant. That may be so if there is on the face of it a defence that is lacking in merit or only barely arguable. I must say that nowadays, orders directing a payment into court as a condition of defending an action are not so common as they used to be.
Be that as it may, it would have been open for the magistrate in the circumstances confronting him on 9 April this year to have ordered something to be paid into court against the judgment as a condition of the adjournment of the trial. I think that was the proper course for him to have taken. Any payment, however, should not be for an amount nearly half the total amount of the claim.
In my view, the immediate circumstances attendant upon the request for an adjournment should have been visited with an order that the appellant pay into court an amount of the order of $5,000 to abide the event of the action.
The appeal should be allowed, the order under appeal quashed and in lieu thereof an order made adjourning the matter for trial in the Magistrates Court. This is subject to the payment of $5,000 into court by the appellant, Mr Samson, to abide the event of the plaintiff’s claim against him. That amount is to be paid into the Magistrates Court on or before Monday 8 September 2003, failing which the judgments the subject of the appeal will remain in full force and effect, and the plaintiff will then be at liberty to execute them.
I order also that the matter be brought on for trial in the Magistrates Court at the earliest available date.
Is there a solicitor on the record for your client now in the Magistrates Court, Mr Dal Cin?
MR DAL CIN: Those who instruct me are on the record in this Court in the proceeding. They haven’t otherwise filed anything in the Magistrates Court.
HIS HONOUR: Do they propose to file an address for service in the Magistrates Court?
MR DAL CIN: Yes, I’m instructed they do.
HIS HONOUR: I note that the solicitors presently instructing Mr Dal Cin, Messrs Winters, propose to file an address for service in the Magistrates Court.
[AFTER HEARING COUNSEL AS TO COSTS]
HIS HONOUR: The order for costs on the appeal is that there be no order for costs on the appeal.
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