Skorpos v Georgiadis - [2013] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SKORPOS v GEORGIADIS
[2013] SASC 165
Judgment of The Honourable Justice David
1 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PROCEDURE - JUDGMENTS AND ORDERS - IN GENERAL - OTHER MATTERS
Appeal against the ruling of a Magistrate refusing an application pursuant to r 87 of the Magistrates Court (Civil) Rules 1992 (SA) – the appellant was the defendant to a claim in the Magistrates Court by the respondent – the Registrar of the Magistrates Court signed judgment against the appellant – the appellant made an application for the default judgment to be set aside on the basis that he had an arguable case on the merits and a reasonable excuse for not complying with the applicable time limit for filing a defence – the Magistrate refused the application – whether the appellant had an arguable case on the merits – whether the appellant had a reasonable excuse for not filing a defence to the respondent’s claim within the applicable time limit.
Held: appeal allowed – the appellant had an arguable case on the merits – the appellant had a reasonable excuse for not having complied with the time limit in filing his defence – the default judgment is set aside.
Magistrates Court (Civil) Rules 1992 (SA) r 30, r 47, r 49, r 60, r 87, referred to.
Battiste v Mulvaney [1997] SASC 6419, discussed.

SKORPOS v GEORGIADIS
[2013] SASC 165
Magistrates Appeal: Civil

DAVID J: The appellant was the defendant to a claim in the Magistrates Court by the respondent, a practising solicitor. The respondent brought an action in the Magistrates Court against the appellant for outstanding legal fees. On 5 March 2013, the Registrar of the Magistrates Court signed judgment against the appellant. On 1 August 2013, a Magistrate refused an application by the appellant pursuant to r 87 of the Magistrates Court (Civil) Rules 1992 (SA) (“the Rules”) for that default judgment to be set aside.
The appellant now appeals against that ruling.
The facts
I have been provided with two affidavits from the appellant, Emanuel Skorpos,[1] and I received by consent an affidavit of the appellant’s wife, Laura Maria Skorpos.[2] I have also been provided with an affidavit of Jonathon Craig McKay,[3] the solicitor for the appellant in the Magistrates Court, in his attempt to defend the claim by the respondent and, attached to that affidavit, a draft defence to the claim of the respondent.
[1]    Affirmed 8 May 2013 and 26 July 2013.
[2]    Sworn 15 October 2013.
[3]    Affirmed 11 June 2013.
Laura Skorpos, in her affidavit, swore that the respondent’s solicitors acted for her husband in a District Court dispute that he had involving his company, Southern Flinders Ranges Estate Pty Ltd, and Rocklands Estates. The claim was listed for trial commencing in January 2013. During that period of time, Mrs Skorpos lived at the family home some distance from Port Pirie and the…

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 Skorpos v Georgiadis

Details

AGLC: Skorpos v Georgiadis [2013] SASC 165
Case: [2013] SASC 165
Decision Date: 1 November 2013

CaseChat Overview and Summary

The appeal concerns a decision by a Magistrate refusing to set aside a default judgment entered against the appellant, Emanuel Skorpos, in a claim brought by the respondent, Georgiadis. The appeal was heard by the Supreme Court of South Australia. The primary issue before the court was whether the appellant had an arguable case on the merits and a reasonable excuse for not filing a defence within the required timeframe. The appellant argued that he had an arguable case on the merits because the claim involved a dispute about the interpretation of a legal retainer, which would require factual findings. The court found that the appellant's case, as outlined in the draft defence and his affidavit, raised a genuine dispute about the contents and nature of the retainer, which was sufficient to satisfy the requirements of rule 87(2)(a). Additionally, the court found that the appellant had a reasonable excuse for not filing a defence within the time limit, as he had not regularly checked his post office box due to living in Adelaide during the relevant period.

The court concluded that the appellant had both an arguable case on the merits and a reasonable excuse for not complying with the time limit for filing a defence. Consequently, the appeal was allowed, and the default judgment was set aside. The court also noted that further hearings would be necessary to address the costs involved in the proceedings. This decision underscores the importance of timely responses to legal claims and the need for a reasonable excuse to set aside a default judgment.

Orders

Orders of the court

Held: appeal allowed – the appellant had an arguable case on the merits – the appellant had a reasonable excuse for not having complied with the time limit in filing his defence – the default judgment is set aside.

Background

Background to the litigation

The appellant now appeals against that ruling.The facts I have been provided with two affidavits from the appellant, Emanuel Skorpos,[1] and I received by consent an affidavit of the appellant’s wife, Laura Maria Skorpos.[2] I have also been provided with an affidavit of Jonathon Craig McKay,[3] the solicitor for the appellant in the Magistrates Court, in his attempt to defend the claim by the respondent and, attached to that affidavit, a draft defence to the claim of the respondent.[1] Affirmed 8 May 2013 and 26 July 2013.[2] Sworn 15 October 2013.[3] Affirmed 11 June 2013. Laura Skorpos, in her affidavit, swore that the respondent’s solicitors acted for her husband in a District Court dispute that he had involving his company, Southern Flinders Ranges Estate Pty Ltd, and Rocklands Estates. The claim was listed for trial commencing in January 2013. During that period of time, Mrs Skorpos lived at the family home some distance from Port Pirie and the appellant had moved to his parents’ home in Adelaide in preparation for the trial. Mrs Skorpos eventually joined her husband at his parents’ home in the lead up to a mediation which took place on 5 and 6 February 2013, such mediation successfully settling the claim. Mrs Skorpos further says in her affidavit that, about three weeks after the mediation when the paperwork was finalised, both she and the appellant were able to return to their home in Baroota in the southern Flinders Ranges during the week of 25 February 2013. Baroota is approximately 32 kms outside of Port Pirie and they have a post office box in Port Pirie due to the fact that Baroota does not have a regular postal delivery route. On Monday 4 March 2013, Mrs Skorpos travelled into Port Pirie and stopped at the Post Office. Among the mail on that occasion was an action in the appellant’s name which is the subject of this matter. Mrs Skorpos said she immediately telephoned the appellant and went to the Port Pirie Magistrates Court in order to lodge a defence. Mrs Skorpos attended at the Court on the afternoon of 4 March 2013 and spoke with a clerk at the front counter. That clerk told Mrs Skorpos that it was too late to file a defence as judgment had already been entered. She was advised by the clerk that the only avenue available to her was to apply to set aside the judgment. In fact, an application was made to do so on 9 May 2013. The appellant, Mr Skorpos, in his affidavit affirmed on 8 May 2013, deposed that he was told by his wife about the events of 4 March 2013 referred to above. He also swore that from 1 November 2012 until February 2013 he and his wife were permanently resident in Adelaide, staying with his parents. He said he went back to Baroota for a short time on 25 February 2013 and returned to Adelaide a few days later but did not check the post office box during that period. In his reasons for judgment, the Magistrate did not dispute what Mrs Skorpos said in her affidavit concerning her attendance at the Port Pirie Magistrates Court on 4 March 2013 and, in particular, did not dispute that she was told that a judgment had already been signed. The Magistrate did, however, cast doubt upon the appellant’s version that he did not regularly check his post office box for correspondence even though he happened to be living in Adelaide for a period of time. He made that finding without recourse to any contrary evidence or any cross-examination of the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The case for the appellant as disclosed in the draft defence document and also the affidavit of the appellant[6] raises issues of the interpretation of a retainer advanced by the respondent and the issue will rely upon the terms of an agreement between the parties. Such considerations will necessarily involve factual findings after hearing evidence. As Doyle CJ said in Battiste v Mulvaney,[7] such an enquiry as to whether there is an arguable defence on the merits cannot be turned into a trial of affidavits. I cannot decide disputes of fact at this stage. But if as pleaded there is a genuine dispute about the contents and nature of the retainer depending on findings of credibility, that is enough to satisfy r 87(2)(a). [6] Affirmed 26 July 2013.[7] [1997] SASC 6419.Conclusion Looking at the matter afresh, I find that there is an arguable case on the merits and the appellant had a reasonable excuse for not having complied with the time limit fixed by the Rules in filing his defence. I would allow the appeal and set aside the default judgment. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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