Vajdic v Community Corporation No 23268 INC - [2017] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
VAJDIC v COMMUNITY CORPORATION NO 23268 INC
[2017] SADC 112
Reasons for Decision of His Honour Judge Barrett
29 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
The applicant seeks a review of the Magistrate's judgment in favour of the respondent in which was held that the Corporation had power under the Corporations by-laws to recover costs and interest from unsuccessful litigation between the parties in other proceedings.
Held: The respondent had the power to levy the costs and interest and there is no cogent reason to find that the judgment sums were erroneous.
Applications dismissed.
Magistrates Court Act 1991 s 38(6); District Court Act 1991 s 42E, referred to.

VAJDIC v COMMUNITY CORPORATION NO 23268 INC
[2017] SADC 112

This is an application brought pursuant to s 38(6) of the Magistrates Court Act 1991 to review a decision in a Minor Civil action made by her Honour Ms Panagiotidis SM on 30 December 2016. Pursuant to s 42E(1) of the District Court Act 1991 I must examine the decision under the review but I may allow further evidence to be received.
Pursuant to s 42E(3) I must give due weight to the decision under review and the reasons for it. I must not depart from the decision except for cogent reasons.
The applicant appeared unrepresented in the Magistrates Court and before me. I have read the transcript of the hearing in the Magistrates Court and her Honour’s reasons for decision. I have read the transcript of the submissions made before me.
There were two claims before the Magistrates Court. They were claims for two sums of money by the respondent Community Corporation of which the applicant is a member. The first sum was $1,739.64 and the second was $4,397.19. The claim for the first sum was laid in the Magistrates Court on 4 February 2015 and the second on 14 January 2016.
The claims arise largely from the costs of other proceedings in the Magistrates Court between the parties and interest. It appears there is an ongoing disagreement by the applicant about fees and levies charged against him by the corporation. The amounts the subject of the dispute relate to the costs of proceedings before another Magistrate. Ms Eldridge SM (as she was then) made findings against the applicant in those earlier proceedings. The applicant appealed unsuccessfully to this Court against those findings. The costs were not ordered by the Magistrates Court but were costs authorised by the by-laws for the Community Plan. Ms Panagiotidis SM reproduced the relevant by-law in her judgment and I do likewise:
3.24     Corporations rights and powers – unpaid levies
(a)     A Lotholder (which expression shall extend to a corporation and a mortgagee in possession) must pay on demand:-
(i)The whole of the Corporation’s costs and expenses (including Solicitors and own client costs) incurred in recovering levies or moneys duly levied upon that proprietor’s Lot in the Plan by the Corporation pursuant to the Act or pursuant to the by-laws of the Corporation;
(ii)Such costs as may have been ordered to be paid by the Lotholder to the Corporation by any Court Tribunal or body with authority to order the payment of costs.
(b) In the event that the Lotholder fails to attend to the payment of such costs and expenses after demand is made for the payment of same, the Corporation may take action for the recovery of same in any Court of competent jurisdiction with the proviso that, in respect of the Corporation’s party and party costs, the Corporation shall comply with any procedure for the taxation and recovery of costs provided for in the rules of the Court, Tribunal or other body which orders payment in costs in favour of the Corporation. The Corporation may also enter any costs payable to it as referred to in paragraphs 3.24 (a) (i) above against the levy account of the Lotholder’s Lot in the Plan and note the amount of such costs on any certificate issued in respect of the Lot pursuant to the Real Property Act.
(c)     If a contribution levied under the Act is unpaid 30 days after it falls due for payment, then the amount of the unpaid contribution will bear interest thereafter at an annual rate as determined by the Corporation from time to time, unless otherwise determined by Ordinary Resolution at a general meeting. At the discretion of the Committee, any Corporation Manager has administrative discretion to write off interest at a limit to be determined by the Corporation from time to time.
(d)     If at the time a person becomes the Lotholder of a lot, another person is liable in respect of the lot to pay interest on a contribution, the Lotholder is jointly and severally liable with the other person for the payment of the interest.
(e)     The amount of any interest is recoverable by the Corporation as a liquidated debt.
(f)     Where the Corporation expends money to make good damage caused by a Breach of the Act, or of these by-laws by any Lotholder or the tenants, occupiers, guests, servants, employees, agents, children, invitees or licensees of the Proprietor or any of them the Committee shall be entitled to recover the amount so expended as debt in an action in any Court of competent jurisdiction from the Proprietor of the lot at the time when the breach occurred.
It is clear from the terms of the by-law that the Corporation is entitled to recover such costs. It is understandable why such a by-law exists. If the Corporation had no power to recover some at least of the costs of litigation it had successfully taken against a member then the membership as a whole would have to pay the costs. Where a Court has found the Corporation was correct in its claim it would be unfair for the other members to bear the costs of the litigation.
In my mind it is quite plain that the learned Special Magistrate was correct when she found that the Corporation had the power to claim costs and interest.
Before her Honour and before me the applicant sought to demonstrate that in any event the figures claimed by the Corporation were wrong. Before her Honour he said that the Corporation’s figures were manipulated (transcript p 8) and before me he said that the Corporation’s motive was to get rid of him (transcript p 11).
I turn to the second challenge to the decision under review, namely that the figures are wrong. The applicant submitted in respect to the first judgment sum that instead of him owing the Corporation $1,474.89, the true position is the Corporation owes him $649.94. In respect to the second judgment sum, instead of him owing the Corporation $4,002.69, he owes them nothing. The applicant sought to put before me different documents and different calculations from those he put before the Magistrate. Although that was an unorthodox position for him to take, that is to put a different argument in this court from that which he put in the Magistrates Court, I allowed him to do so. I allowed him to tender the documents he wanted to tender and to put the different argument that he wanted to put. In the event the argument he put was convoluted and difficult to follow. At the end of his submissions I could see no coherent basis for his contentions in respect of either judgment sum.
That really is the test that I must apply in conducting this review. Section 42E requires me to give due weight to the decision under review and not to depart from it unless there is shown to be a cogent reason for doing so. I see no cogent reason in respect of either judgment amount.
I take some comfort from the fact that the Corporation’s accounts are subject to audit, but the reason for not interfering with either judgment is that there is no cogent basis for doing so. There was undoubted power invested in the Corporation to levy the costs and there is no reason to interfere with the judgment figures.
Before concluding the matter I take the same opportunity that the Magistrate took to encourage the parties to reach a mutual understanding on these costs. Otherwise there will be no end to the disagreements and litigation. From the information put before me that encouragement is directed particularly to the attention of the applicant, but it may be that the respondent could suggest some form of mediation to overcome any problems in the future.
Orders
I dismiss both applications for review.