Turner and Zollo v Kostoglou and Anor (No 2) No. Scciv-02-1891

[2003] SASC 181

TURNER and ZOLLO v KOSTOGLOU and ANOR (No 2)
[2003] SASC 181

Magistrates Appeal:  Civil

1. PERRY J. (ex tempore) These reasons are to be read in conjunction with the reasons published by me on 1 May 2003. Contrary to the view expressed by me in those reasons, I have now reached the view that it was open to the magistrate constituting the Magistrates Court at first instance in these proceedings to address the question of the validity of the distraint. On reflection, I have reached that view as it seems to me that questions of jurisdiction may always be argued, even in the case of proceedings under specific statutory proceedings such as these, which are under Pt 2 of the Landlord and Tenant Act.

2. Although in those reasons I expressed the tentative view that it is likely that the distraint was unlawful, I accept the position taken by Mr Dal Cin, namely that a full opportunity to adduce evidence on the question of the validity of the distraint was not given to the parties at the hearing in the court below.

3. In view of that, and in the interests of the expeditious completion of these proceedings, I have decided that I will afford an opportunity for such further evidence to be called on that aspect of the matter as the parties may be advised to lead at a further hearing before me. I will then determine whether the tentative view expressed in the reasons published on 1 May 2003 should be confirmed or not.

4. There is a question as to the status of Mr Turner. He is not a party to these proceedings and he is bankrupt. He asserts no claim to ownership of the goods in question or at least to most of them. But he should be afforded an opportunity to be heard in proceedings in which the validity of distraint against him as lessee of the premises falls to be determined.

5. I could possibly proceed simply on the basis that he be present and give evidence if he wishes. Furthermore, if I was ultimately to determine that the distraint was unlawful, I see no reason why I should not determine that in his absence, as this would not be making an order adverse to him without him being given an opportunity to present arguments or be a party to the proceedings.

6. However, I think the safest course is simply to allow him the status of an intervener in the proceedings. That is, an intervener in the proceedings in the Magistrates Court which at the moment are before this Court on appeal.

7. I intimate, therefore, that unless persuaded otherwise at the hearing to be held on a date which I will shortly fix, I will allow Mr Turner to appear as an intervener and to adduce such evidence or arguments on the question of the validity of the distraint beyond the evidence already given, as he may wish to do. That is subject to any question which may be raised by his trustee in bankruptcy as to the propriety of that course.

8. I will be directing that the trustee be given specific notice of the further hearing and a copy of these additional reasons so that he can determine what course to take.

9. I would in any event be assisted by some communication from the trustee, preferably in person, so that his position can be made clear to the court.  If he fails to communicate or appear, I will proceed regardless.

10. I order that this matter be listed for further hearing on Thursday 3 July 2003 at 10.15 am, with one day set aside.

11. I confirm my intimation that as at present advised, I propose to allow Mr Turner to appear at that hearing as an intervener.

12. I direct that the parties be at liberty to tender such further evidence at the hearing as they may be advised on the question of the validity of the distraint, in light of my reasons published on 1 May 2003.