Uren v Jelicic
[2016] SADC 125
•12 October 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
UREN v JELICIC
[2016] SADC 125
Judgment of Her Honour Judge Tracey
12 October 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicant for review had issued proceedings in the Magistrates Court claiming repayment of loans made to the respondent. Claims statute barred. Application for extension of time dismissed by Magistrate. Whether emails from respondent were an acknowledgment and offer to repay. Whether emails signed for the purposes of s 42 Limitation of Actions Act.
Held: Emails signed pursuant to s 9 Electronic Transactions Act. Extension of time granted. Magistrates Court decision rescinded. Judgment for the applicant in the sum of $25,440.
Magistrates Court Act 1991 (SA) s 38; Limitation of Actions Act 1936 (SA) s 42(1), s 48; Electronic Transactions Act 2000 (SA) s 9, referred to.
Kavia Holdings Pty Ltd v Suntrack Holdings Pty ltd [2011] NSWSC 716, discussed.
UREN v JELICIC
[2016] SADC 125
Mr Uren, the respondent and the plaintiff in the Magistrates Court proceedings, has filed an application to review the decision of Magistrate Milazzo delivered ex tempore 10 December 2015.
At the review, Mr Uren appeared unrepresented. Other than to advise that she was unwell and unable to appear at the hearing, Ms Jelicic had not submitted a written case in response to Mr Uren’s application.
In the circumstances I was satisfied it was appropriate to proceed in Ms Jelicic’s absence, inviting her to comment on Mr Uren’s application, and his submissions, either in writing or in person. On 23 September, Ms Jelicic informed the court by email that she was declared bankrupt on 2 September 2016, and has made no further submissions.
Section 38 of the Magistrates Court Act 1991, (‘the Act’) sets out the power this Court has in relation to an application for review. The Court may inform itself as it thinks fit and is not bound by the rules of evidence and must act in accordance with equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
I note that at the trial in the Magistrates Court, the Magistrate heard evidence from both parties.
If appropriate, there is power to re-hear evidence that was heard by the Magistrate, and in this case, I have allowed further evidence from Mr Uren on a limited range of issues. I accept the advantage the Magistrate had as to an assessment of the credibility of witnesses.
Pursuant to s 38(7)(d) of the Act, I may either affirm or rescind the judgment of the learned Magistrate and substitute a judgment that I consider appropriate.
I have received a copy of the Magistrates Court file, transcript of the evidence of the trial, Magistrate Milazzo’s reasons for decision and the exhibits tendered at trial.
The Magistrate allowed Ms Jelicic to be assisted by solicitor John Marchant to the extent that he was to guide her in the production documents and with respect to submissions at the conclusion of the evidence.
As set out in the extempore reasons for decision by the Magistrate, the action instituted by Mr Uren in the Magistrates Court relates to his claim for repayment of monies he loaned to Ms Jelicic in 2007 and 2008, totalling $19,685.05 plus interest.
I note that at trial, Ms Jelicic alleged that in satisfaction of her debt to Mr Uren, she had repaid the sum of $21,000 in November 2006. It would appear from the transcript that at trial, Ms Jelicic had all but accepted that the payment of $21,000 did not relate to the monies she had been lent. In any event it is clear from the evidence and the Magistrate’s reasons that he found Ms Jelicic’s explanations to why she paid $21,000 to ‘be unsatisfactory and a little evasive’. I agree with his assessment and his finding that the sum claimed remained owing to Mr Uren.
Clearly the issue for the Magistrate was whether or not the claim by Mr Uren was out of time and whether or not he could be a beneficiary of the provisions of the Limitation of Actions Act 1936 (‘the LOA Act’) extending the time to make the claim.
The Magistrate heard Mr Uren’s evidence regarding a schedule of amounts paid to Ms Jelicic that had been attached to his Magistrates Court claim. That document, exhibit P2, and referred to as ‘the acknowledgement’, listed amounts paid to Ms Jelicic totalling $17,455.05 and set out a re-payment schedule. The document commences with the words: I, Branka Alvaro (which I note is Ms Jelicic’s former name) owe Guy Uren a total of $17,455.05 to be paid back as shown. There are handwritten additions to the document initialled by Ms Jelicic and dated 18.10.07, totalling $1,380.
The Magistrate had regard to a number of emails that went between the parties on the issue of the debt. He was ultimately satisfied there had been an acknowledgment of the debt coupled with a promise to repay the debt by way of various instalments.
I note the first of those emails is dated 25 July 2009 and is from Ms Jelicic apparently in response to a letter written to her by Mr Uren. In that email Ms Jelicic offered to commence making repayments of $50.00 per fortnight. On 3 August 2009, Mr Uren rejected Ms Jelicic’s offer and requested payment of the amount owing as at that date in the sum of $19,685.05.
Ms Jelicic by email dated 7 August 2009 informed Mr Uren she had no money and that she will commence depositing $50.00 into Mr Uren’s account starting from 21 August 2009.
Subsequent email correspondence relates to delays in Ms Jelicic’s receipt of a Workcover claim and promises by Ms Jelicic to repay the monies owing as she is able. Certainly none of the email correspondence permits a finding that Ms Jelicic disputed the monies claimed were owed.
As did the Magistrate, I accept that the email dated 7 August 2009 is an acknowledgment by Ms Jelicic of the debt to Mr Uren and her offer to repay it.
In his judgment, the learned Magistrate found he could be satisfied Mr Uren was entitled to those amounts paid to Ms Jelicic that had remained within time. Those amounts totalled $3,230. In the circumstances, the Magistrate ordered judgment for the plaintiff in the sum of $3,230 and allowed interest calculated at roughly 10 per cent over seven years, totalling $5,480 inclusive of interest.
With respect to those amounts that became statute barred, the latest of which was barred in January 2015, the Magistrate found that the provisions of s 42(1) of the LOA Act were not complied with. Accordingly, he dismissed the plaintiff’s claim with respect to those amounts.
Section 42 of the LOA Act provides as follows:
(1) In any action of debt or other action in the nature of an action founded upon simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new and continuing contract whereby to take any case out of the operation of this Act, or deprive any party of the benefit thereof, unless that acknowledgment or promise is made or contained by or in some writing to be signed by the party to be charged thereby or by his agent.
In the learned Magistrate’s reasons he said ‘an unsigned acknowledgment is ineffective even if accompanied by a letter saying that the acknowledgment was written at the direction of the acknowledger. The emails are not signed I therefore find that the provisions of s 42(1) have not been met in relation to any of the debts in the acknowledgment.’
Clearly s 9 of the Electronic Transactions Act 2000 is relevant to the issue. The Act provides as follows:
(1)If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if—
(a) a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and
(b) the method used was either—
(i)as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
(ii)proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
(c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).
The provisions of the Electronic Transactions Act in this regard are consistent with the position taken more generally in relation to email communication to be regarded as signed for the purpose of the execution of contracts.[1] The exclusions provided by s 5(1)(a) of the Regulations under the Act are not relevant here. Ms Jelicic is clearly identified in the emails and her intention is clear.
[1] Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd [2011] NSWSC 716.
The emails from Ms Jelicic are to be regarded as having been signed by her.
In my view, applying s 9 of the Electronic Transactions Act, s 42(1) of the LOA Act has been complied with.
The general power to extend periods of limitation is set out in s 48 of the LOA Act as follows:
48—General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not—
…
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
…
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
…
(3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—
(a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff's loss and the conduct of the parties generally; and
(d) any other relevant factor.
I accept, as I assume did the learned Magistrate, that the conduct of Mr Uren in demanding the money and Ms Jelicic responding to those demands, was such that it could not have been any surprise to Ms Jelicic when she received the Magistrates Court proceedings. It was not a case where the relevant documents evidencing communication between the parties had been destroyed. Nor was it the case it would appear, that the amounts claimed by Mr Uren was in any real sense disputed by Ms Jelicic. I accept that Mr Uren’s reasons for not instituting the proceedings earlier and within time, relate to his difficulty in locating Ms Jelicic and from the email representations she made, the last of which I note was in August 2009.
While Ms Jelicic in her evidence made reference to certain tactics employed by Mr Uren and suggested that his motives were less than honourable, such allegations do not in my view appear to be consistent with Ms Jelicic’s email correspondence in which as noted by the learned Magistrate, she at no time disputed the monies were owing as claimed.
Accordingly, I am satisfied that it is just in all the circumstances to grant the necessary extension of time and find that Mr Uren is entitled to pursue his claim for those amounts listed on the acknowledgment, together with the additional amounts, together with interest.
Mr Uren is entitled to judgment in his favour calculated according to his filed claim. I note that it would seem he is entitled to more on account of interest, however, he has told me that he is seeking only what has been claimed. In those circumstances. I rescind the judgment made by the learned Magistrate. There will be judgment in Mr Uren’s favour in the sum of $19,685.05 plus interest in the sum of $5,314.95 and costs and fees as ordered by the learned Magistrate in the sum of $440.00, totalling $25,440.
Since Mr Uren was not represented on review, there will be no order as to costs in relation to review pursuant to s 38(7)(a) of the Act.
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