Valherie v Strata Corporation No 1841 Incorporated No. Scciv-02-1124

[2002] SASC 398

VALHERIE  v  STRATA CORPORATION No. 1841 INCORPORATED

[2002] SASC 398

Magistrates Appeal (Civil)

1. BLEBY J (Ex tempore):     The appellant was the owner of a house property situated at 4 Lothian Avenue, Windsor Gardens.  The respondent is a Strata Title Corporation.  It alleged that structural damage to some of the units in the group at 14 Pibcroch Avenue was caused by a lemon scented gum tree growing on the property of the appellant.  It obtained an engineer’s report to that effect.  The appellant was requested to remove the tree but did not, claiming amongst other things that she had rescinded the contract for the purchase of the land from the previous owner.  No action was taken to remove the tree.

2. On 29 January 2001, prior to the issue of proceedings in the Magistrates Court, the present respondent posted a letter to the appellant’s address at 4 Lothian Avenue and to an address in France, notifying her of their intention to begin legal proceedings.  The appellant claims that she did not receive either letter.  That is not a matter which needs resolution at this stage.  In any event, proceedings were commenced by the respondent against the appellant on 22 February 2001.  The proceedings sought orders for the removal of the tree and damages.  The respondent had difficulty in locating the appellant.  However on 7 September 2001 an order was made in the Holden Hill Magistrates Court for removal of the tree, enabling the respondent to remove it if the appellant did not, and charging her land with the cost of removal.

3. On 19 October 2001 pursuant to that order, the respondent caused the tree to be removed from the appellant’s property.  It would also appear that pursuant to the charging order the house was eventually sold by the Sheriff, as it had been unoccupied all this time and the appellant had not participated in the proceedings.

4. The appellant says that she returned to Australia in January 2002 and heard about the action.  At her request, on 8 February 2002 the action was transferred from the minor civil jurisdiction of the Magistrates Court to the general jurisdiction, and on 9 March 2002 the appellant filed a defence to the respondent’s summons.  At that stage of course there was still an outstanding claim for damages for the repair of structural damage to the units.

5. On 24 May 2002 the appellant applied to strike out the respondent’s claim. That application was dismissed on 31 May 2002, and leave was given to the respondent to file an amended particulars of claim.  Amended particulars were filed on 12 July 2002.  At that stage of course the only outstanding claim was a claim for damages, quantified in the defendant’s particulars of claim at $19,942.

6. On 7 June 2002 the appellant applied to set aside the orders made by the Magistrates Court on 7 September 2001 or alternatively seeking orders as to the payment out of monies held by the Sheriff.  Not surprisingly the orders made on 7 September 2001 were not set aside, but on 21 June 2002 the Magistrates Court ordered the release of monies held by the Sheriff, the proceeds of sale of the appellant’s house, as to $46,123.28 to the appellant and the balance of $35,000 to be held by the Sheriff pending resolution of the proceedings.

7. On 5 July 2002 the Magistrates Court made an order in the following terms: 

   “The defendant (the present appellant) is to retain a relevant expert and obtain a report from that expert after examining the relevant units.  To that end the plaintiff is to permit free and unhindered access by the defendant’s expert and the defendant herself if she so wishes to attend on that property for those purposes.  The report is to be obtained within 28 days, upon receipt defendant is to furnish plaintiff with that copy.  The defendant advises the two Koukourou reports are to be made available to her (that is the appellant) to her expert for comment.  Plaintiff is to have costs in respect of today’s attendance fixed at $75.”

8. The plaintiff was also to obtain what was described as an addendum report from a firm of engineers identifying the expert’s opinion when the damage is likely to have occurred.  The Magistrate noted at the time that those questions were important because it might be that the previous owners of the property should be joined.

9. On 11 July 2002 the appellant applied to set aside the order of 5 July 2002 on grounds, it would appear, which relate to a claim by her that she is not liable to the respondent at all for damage to the respondent’s building.

10. On 2 August 2002, on what is acknowledged to have been a directions hearing, a Magistrate made the following order and I read from the copy of the record of the Court:

    His Honour indicates:

    “The defendant is unwilling to comply with orders made on 5/7/02, the plaintiff therefore seeks a judgment on the basis that the defendant has failed to prosecute her defence expeditiously and conscientiously.  I am sympathetic to that application.  The defendant’s application is dismissed.  Defence is struck out for want of prosecution and plaintiff is to have judgment forthwith in the sum of $19,942 as per amended claim filed 12/7/02 and the plaintiff is to have all costs of and – ‘I presume that should read:’ - of and incidental to that particular action.  Costs to be agreed or taxed.”

11. Reference in that order to the defendant’s application is presumably to her application to set aside the order of 5 July 2002.

12. The appellant appeals against that order on grounds which suggest that the plaintiff’s action should be dismissed.  However, that is not something with which I am or can be directly concerned.  The only question on this appeal is whether the Magistrate was correct in striking out the applicant’s defence and in entering judgment for the respondent.

13. The reason for striking out the appellant’s defence and entering judgment for the respondent appears to have been because of the appellant’s non-compliance with an interlocutory order relating to the obtaining of an expert’s report.  The appellant declined to comply with that direction for reasons best known to her.  In my opinion that did not justify the orders that were in fact made.  If the appellant was unwilling to comply with the order there were other orders that could have been made without deciding the case finally against her.  For example, a direction could have been given that at the trial the appellant would not be permitted to lead any expert evidence of her own and that the trial would proceed accordingly.

14. The appellant may have had some difficulty in taking the line which she had taken up to that time.  She may have some difficulty in maintaining that line, but she was entitled at least to a fair trial.  There was no justification for entering what was in effect a final judgment against the appellant.  No application had been filed by the respondent seeking summary judgment or striking out the defendant’s defence.  It appears to have been merely an oral application made at a directions hearing. Furthermore, there was no justification for entering judgment for the respondent in an amount claimed on the summons where there had not even been any assessment of the respondent’s damages.  It must be remembered that this was no longer a minor civil claim.  It had to be treated as an ordinary civil action in the Magistrates Court.  Even if the appellant’s defence was struck out, the action still had to proceed to assessment of the respondent’s damages.  However, even striking out the appellant’s defence at that stage and for the reason given, was a draconian action which put an end to any rights that the appellant may have had.  There were other and more satisfactory ways of dealing with the appellant’s non-compliance with the interlocutory order, and I have given an example of how that might have been dealt with.  Accordingly the appeal must in my opinion be allowed.

15. The formal orders of the court will be:

    1. Appeal allowed.

    2. Set aside the order of the Magistrates Court made on 2 August 2002.

    3.Remit the matter to the Magistrates Court sitting at Holden Hill for further directions.

    4.The question of the further disposal of monies held by the sheriff pursuant to the order of this Court made on 16 August 2002 be referred to the Magistrates Court.