Turner and Zollo v Kostoglou and ANOR (No 3) No. Scciv-02-1891

[2003] SASC 216

TURNER and ANOR v KOSTOGLOU and ANOR (No 3)
[2003] SASC 216

Magistrates Appeal:  Civil

1. PERRY J.               These reasons are to be read in conjunction with the reasons published by me on 1 May 2003[1] and on 10 June 2003.[2]

   [1] Judgment No [2003] SASC 105.

   [2] Judgment No [2003] SASC 181.

2. This matter was re-listed before me on Thursday 3 July 2003. Mr Dal Cin for the respondents Mr and Mrs Kostoglou then intimated that he did not propose to adduce any further evidence with respect to the validity of the restraint. At the same time he indicated that his clients’ position was that the distraint was lawful.

3. Having regard to the provisions of s 58(4) of the Bankruptcy Act 1966 (Cth), even if the distraint was valid, his clients could not proceed with the distraint, for example, by selling the property, given the supervening bankruptcy of Mr Turner.

4. The position of Mr and Mrs Kostoglou having been made known to Mr Turner’s trustee in bankruptcy, a Mr Fryer attended on behalf of the liquidator. He explained that the trustee’s position is that in his view the assets in question vest in him as trustee of the bankrupt estate of Mr Turner, but he is taking advice on the matter before asserting his title.

5. Given the position now taken by Mr and Mrs Kostoglou, I did not proceed with the making of an order joining Mr Turner as an intervener in the proceedings.

6. Absent any further evidence as to the immediate circumstances of the purported distraint, I confirm the tentative view expressed in my reasons for judgment of 1 May 2003, that the distraint was unlawful.

7. The consequence of that conclusion is that the magistrate from whose decision the present appeals are brought had no jurisdiction to entertain an application under Part 2 of the Landlord and Tenant Act 1936. I am satisfied that to have been the position, notwithstanding a somewhat ingenious, but in my view fallacious, argument to the contrary which was put by Mr Pertl. He contended that even although the distraint was unlawful, the proceedings were valid, but I rejected that contention.

8. I should say that Mr Dal Cin argued that I should not go so far as to make a finding that the distraint was unlawful, whatever might be my view of the facts surrounding the purported distraint. He contended that it was simply not open for the appellants to suggest that the distraint was unlawful, as to do so was tantamount to conceding that the court in which they had chosen to bring the proceedings in the first place had no jurisdiction to entertain them.

9. But I have pointed out in arguendo that it sometimes happens that all parties before a court or tribunal present their respective cases on the footing that there is jurisdiction, but on appeal the point may be raised that in fact there was no jurisdiction.

10. Mr and Mrs Turner were, after all, unrepresented in the court below, and it is not surprising that the legal consequences of their attempt to argue that the distraint was unlawful in the court below, more particularly the effect of any ruling to that effect on the question of jurisdiction, was not apparent to them.

11. Having on appeal allowed the jurisdictional point, it followed that the appellants’ applications in the Magistrates Court were correctly dismissed, but for the wrong reasons. Instead of being dismissed on the merits, they should have been dismissed on the ground that the court lacked jurisdiction to entertain them.

12. In the result, on 3 July 2003 I made an order allowing the appeal for the purpose of quashing the findings of the learned magistrate, but the appeal was otherwise dismissed.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. Judgment No [2003] SASC 105.

    2. Judgment No [2003] SASC 181.