Timms v Timms & Ors No. Scgrg-98-447 Judgment No. S6765

[1998] SASC 6765

TIMMS v TIMMS & ORS

Magistrates Appeal
Debelle J (ex tempore)

This is an appeal from an order of a magistrate concerning enforcement of the judgment. 

On 7 August 1997 Mr Harry SM delivered judgment in the civil division of the Magistrates Court at Port Adelaide against a Mr Rowan Timms.   An appeal from that judgment was dismissed.  The effect of the judgment was to order the sum of $12,985.40 to be paid to the respondents Matthews, SA Marine and Salvage Pty Ltd and Birkenhead Development Corporation Pty Ltd. 

The judgment was enforced by warrant of execution. Goods were seized by the Sheriff. Disputes arose as to the persons entitled to those goods. Two items seized were a Volvo prime mover and one trailer. Mr Timms, as the judgment debtor, made an application dated 19 March 1998 pursuant to s17 of the Enforcement of Judgments Act, 1991 seeking, among other things, that the Sheriff and judgment creditors be restrained from dealing in any way with the property.  The application was dismissed on 20 March 1998 by Mr Metanomski SM. 

The goods were to be sold at 10 a.m. on 23 March 1998. Shortly before the auction the Deputy Sheriff, who was present at the auction, received a telephone call from the judgment debtor advising that Mrs Lisa Timms, the wife of the judgment debtor, had an unregistered interest in the prime mover and trailer. Two notices pursuant to s16(2) of the Enforcement of Judgments Act were handed to the Sheriff before the sale.  The Deputy Sheriff advised Mrs Timms that he received the notice but that the sale would proceed.   The prime mover and trailer were sold.  The proceeds of sale are some $35,000.

Before proceeding further, I note the relevant legislation. Rule 133 of the Magistrates Court Rules provides for the issue by the Registrar of that Court of a warrant for the sale of a judgment debtor’s real or personal property. Rule 133(4) requires the Sheriff, when executing the warrant, to comply with the Supreme Court Rules. The relevant rule is Rule 88A. Section 16(2) of the Enforcement of Judgments Act prescribes a procedure to enable a third party, who claims an unregistered interest in the property to be sold, to protect that claim and have it recognised by the Sheriff. When notice is given pursuant to s16(2), the Sheriff must act in accordance with Rule 88A.07A. That rule prescribes the procedures for the determination of claims to the property the subject of the warrant.

On 23 March 1998 the Sheriff, acting pursuant to Rule 88A.07A of the Rules of this Court, caused notice of the claim of Mrs Timms to be given to the judgment creditors.  By application dated 25 March 1998, the judgment creditors advised that they did not recognise the validity of the claim made by Mrs Timms.  Pursuant to Rule 88A.07A the claim had to be determined by the court in which the judgment was obtained, namely, the Port Adelaide Magistrates Court. 

The matter was listed for hearing on 27 March 1998.  On 26 March 1998 an application was made by Mrs Timms seeking an order that the Sheriff recognise her claim.   The application was supported by affidavit.  An affidavit was also sworn in support of the application made by the judgment creditors denying the interest claimed by Mrs Timms.  The application came on before Mr Harry SM at 9.30 a.m.  He adjourned the application until 2.15 p.m.  the same day, in order that he might read the judgment dismissing the appeal from the order he had made in August 1997.  When the matter came on again at 2.15 p.m., Mr Colton appeared for Mrs Timms.  Mr Noblet appeared for the respondents Matthews, S.A.  Marine Salvage and Birkenhead.   Mr Grant Schmerl, Deputy Sheriff, appeared on his own behalf.  Mr Timms appeared on his own behalf in relation to an unrelated matter, which need not be further mentioned. 

The proceedings before the magistrate did not occupy a long time.  Mr Colton informed the magistrate that his client was present and that he sought to lead evidence from her.  He did not elaborate upon the nature of the evidence he proposed to adduce.  There was, however, in her affidavit, reference to the material upon which she relied.   It now appears that the effect of the material which Mr Colton sought to elicit through her was to reinforce the material to which reference had been made in the affidavit.   Brief submissions were made by other parties.  The magistrate then adjourned to consider the matter.  He returned a little later and made some remarks upon the application.  He then made orders that the Sheriff disburse the proceeds of sale to the judgment creditors and then made further orders as to the balance of the moneys.  In adopting this course, the magistrate failed to give any opportunity to Mr Colton to lead any evidence from Mrs Timms.  In his remarks, as he has called them, the magistrate does not indicate why he did so.  Further, his remarks do not in any respect deal with the issues of fact concerning the claims by Mrs Timms.  The remarks do no more than recite a history of the matter without going into the merits of the matter then before him. 

In all the circumstances, one cannot be satisfied that there has been an adherence to the rules of natural justice.  Plainly Mrs Timms, who had not been a party in any prior proceedings in the court, ought to have had an opportunity of adducing evidence in support of her claim and the magistrate should ought then to have allowed the other parties to test the evidence and then to adjudicate upon that claim.   It does not appear that any of these steps occurred.  In all the circumstances, the only course available is to set aside the orders made by the magistrate on the ground of the failure to accord Mrs Timms an opportunity to present her evidence and to be heard in support of her claim. 

In all the circumstances, I must, therefore, allow the appeal but I think it prudent to direct that Mrs Timms promptly advise the nature of the material upon which she proposes to rely.  This matter has already been delayed and the respondents are entitled to have an early adjudication of this claim which has been made at a late stage. 

I should add, for completeness, that Mrs Timms does not complain that the prime mover and trailer have been sold.   She seeks to do no more than claim the proceeds of sale. 

I also add that leave had been given to North East Plaza Pty Ltd to intervene in this appeal but it has decided not to pursue the matter and did not appear.

Moneys have been paid into court to abide the result of this appeal.  It is appropriate that I should make an order in a moment extending the effect of that order so that the moneys remain in court pending the hearing and determination of the claim in the Magistrates Court or any appeal therefrom. 

For all of these reasons, there will be orders as follows:

1...... Appeal allowed. 

2...... The orders of Mr Harry SM dated 27 March 1998 are set aside. 

3...... The application of the respondents, S.A.  Marine Salvage Pty Ltd and Matthews, dated 25 March 1998, and the application of the appellant, dated 26 March 1998, will be remitted to the Civil Division of the Magistrates Court at Port Adelaide for hearing, to be heard by Mr Harry SM.  

4...... There will be an order that the appellant, on or before Wednesday, 8 July 1998, file in the Port Adelaide Magistrates Court an affidavit particularising the grounds upon which she relies and annexing thereto the documents upon which she relies, and shall deliver the said affidavit both to the respondents and to the Sheriff.

5.I order that the moneys now paid into court to abide the result of this appeal, remain in court pending the hearing and determination of the applications and any appeal therefrom.

6...... The question of costs of this appeal is reserved.  

ANNEXURE