Spurway v Banerji No. Scciv-02-449

SPURWAY v BANERJI
[2002] SASC 278
Magistrates Appeal: Civil

PERRY J. (ex tempore) This matter commenced in the Residential Tenancies Tribunal. On 9 August 2000 the tribunal ordered the present appellant, Mr Desmond Spurway, to pay to the respondent, Mr Banerji, the sum of $5800 within 28 days. The judgment was for arrears of rent payable by Mr Spurway as tenant of premises at 44 Elizabeth Street, Norwood, of which Mr Banerji was landlord. That judgment or order was registered in the Magistrates Court for the purposes of enforcement.
An examination summons was issued out of the Magistrates Court and subsequently a warrant of sale was issued.
Acting pursuant to the warrant of sale, the Sheriff seized a 1200 cc Yamaha motor cycle in the apparent possession of Mr Spurway. Before it could be sold, the Sheriff was served with a notice under s 16(2) of the Enforcement of Judgments Act 1991 of an unregistered claim put forward on behalf of Mr Spurway’s son, Dale Spurway-Humphries.
The inter-pleader, as it is sometimes called, came on for hearing before a magistrate. He heard evidence from Mr Banerji, Mr Spurway, and Mr Spurway’s son and daughter.
Mr Spurway’s son Dale was then 14 years of age and his daughter Peta was 15 years of age. They both gave their evidence unsworn.
On 13 March 2002, the learned trial magistrate gave judgment in favour of Mr Banerji.
He correctly identified the onus of proof as proof on the balance of probabilities, and furthermore, he held that the burden of discharging the onus as being on Mr Banerji. He may not have been correct in doing so, as I think it is arguable that the burden of proof is on the inter-pleader. But by the magistrate taking the course which he did, Mr Spurway cannot complain that he was disadvantaged.
In his reasons for decision, the learned trial magistrate sets out a number of findings with respect to the history of the ownership and use of the motor cycle.
It appears that the proceeds of sale of a Harley Davidson motor cycle, which was disposed of in 1988, provided the source of funds for the purchase of the Yamaha. Mr Spurway’s evidence was that both transactions, that is the transaction concerning the Harley Davidson and its sale and the transaction of the purchase of the Yamaha, were transactions conducted by him on behalf of his son. Mr Spurway agreed that he signed the papers to do with both transactions, but that he did so as agent for his son. None of the paperwork involved was produced at the hearing.
It is common ground that the bike was registered in the son’s name. The registration certificate, which by now has expired, was tendered as an exhibit. The learned trial magistrate correctly held, however, that registration is not necessarily evidence of ownership, and it is not determinative of the question of ownership.
It seems clear enough that the bike has remained in the possession of Mr Spurway and that he has ridden it from time to time; indeed, for some 3 or 4,000 kms. Eventually it was placed on consignment for sale. The papers associated with that further transaction were likewise not produced before the learned trial magistrate.
The bike was in the hands of the consignee when it was seized by the Sheriff. Mr Spurway’s evidence was that he had placed the vehicle on consignment for sale in order to buy another bike for his son.
The learned trial magistrate had the benefit of hearing and seeing the witnesses who gave evidence. It is true, as Mr Spurway has submitted during the course of the hearing of the appeal to this Court, that the evidence of both his son and daughter was to the effect that the bike was owned by the son.
The learned trial magistrate observed, however, during the course of his reasons:
“Possession is a common coincidence with ownership unless there is some specific reason for possession to be elsewhere. Possession of this motor cycle apart from it being placed on consignment was always with the defendant. He was the one who had the benefit of it by riding it. He was the one who placed it on consignment.
There was an interesting mistake in cross-examination when the defendant, Desmond Spurway, put a question in relation to ‘my’ bike but then quickly corrected himself to say ‘my son’s’ bike. I think that showed the truth in his mind, it was his bike. All the surrounding circumstances are consistent with ownership of this bike being in Desmond Spurway and I believe placing a registration in his son and telling his son it was for his benefit was to protect this asset against creditors. One the veil of that deception is stripped aside, the truth is that both bikes were always owned by Desmond Spurway and I make that finding.”
It is from that finding that the appeal to this Court is brought.
In his notice of appeal, Mr Spurway complains in the first place that the warrant was irregularly issued, but he has not pursued that argument on the hearing of the appeal. There is nothing to suggest that the warrant was irregularly issued.
His next ground is that the learned magistrate may have erred in not restricting hearsay evidence as to the ownership of the motorcycle. There was a passage during the course of the evidence given by Mr Banerji in which he referred in turn to comments made by a Mr Swan, who was allegedly a friend of Mr Spurway. But that was a very minor passage of evidence which I have perused, having had the benefit of the transcript. I cannot believe that the experienced magistrate would have allowed his judgment to have been influenced by this passage of evidence.
In the third ground of appeal the appellant, Mr Spurway, asserts that the learned magistrate should have found that the motorcycle was held by his son Dale Spurway, upon trust for the appellant for his life, and “then for Dale Brett Spurway, his son, with a power of revocation and that no warrant should issue against the same”.
I must say that it does seem to me that although the appellant has consistently maintained that the bike was his son’s bike, there has been a degree of variation in the manner in which it is said to be held for his son.
The ground of appeal to which I have just referred does not seem to be consistent with earlier assertions by Mr Spurway that in fact he held the bike, that is, the appellant Mr Spurway, for his son to succeed to it on the appellant’s death.
However, in any event, there is no evidence to support the third ground of appeal. Insofar as the appellant has consistently maintained in more general terms that the bike is his son’s bike, that was the central issue which was decided against him by the learned Special Magistrate after hearing all of the evidence.
The fourth ground of appeal relates to the need to extend the time for the issue of the proceedings. I will deal with that separately in due course.
On the hearing of the appeal, Mr Spurway, who again represented himself, repeated the arguments which he had previously put at various stages of this matter, more particularly to the learned Special Magistrate. During the course of his submissions he referred to the High Court decision of Russell v Scott.[1] That case concerned title by survivorship and does not throw any light upon the question at issue in this case.
[1] (1936) 55 CLR 440.
This case concerned a purely factual question, namely whether or not Mr Spurway was to be believed in his assertions that the Yamaha bike was the property of his son.
I have carefully perused the papers and considered the submissions put by Mr Spurway, but I am unable to perceive that the learned trial magistrate fell into error in rejecting Mr Spurway’s assertions, and the application brought by his son.
While it is true that there was a body of evidence from Mr Spurway, his son and his daughter in support of Mr Spurway’s assertion as to the ownership of the bike, it was entirely a matter for the learned trial magistrate to assess the credibility of that evidence and come to the essential finding necessary to dispose of the application.
The appellant Mr Spurway lodged a notice of appeal within time, but it was not received on to the court file until the time for appeal had expired. It was lodged 14 days after the decision of the learned trial magistrate, namely on 27 March, but it was not received on to the court file until 5 April 2002, which was after a Master had determined in Mr Spurway’s favour an application for remission of fees.
In those circumstances I think it proper to extend the time within which the appeal may be brought nunc pro tunc to and including 5 April 2002.
However, for the reasons which I have given, I would dismiss the appeal. I so order.
There can be no question of costs as both parties have been unrepresented. There is no order as to costs of the appeal.
JUDGMENT CITATION
1. (1936) 55 CLR 440.

[2002] SASC 278

13 August 2002