Vorassi v Maxwell Property Consultants Pty Ltd No. Scciv-03-249

[2003] SASC 111

VORASSI v MAXWELL PROPERTY CONSULTANTS PTY LTD
[2003] SASC 111

Magistrates Appeal:  Civil

1. PERRY J.  (ex tempore)    This is an application by the defendant to an action in the Magistrates Court for an extension of time within which to appeal from the entry of judgment against him, upon his failure to attend at a conciliation conference in that court on 18 December 2002.

2. I have heard arguments as to the merits of the appeal as well as on the question of extension of time. I think it proper to grant an extension of time to appeal.

3. I now deal with the merits.

4. The proceedings in the Magistrates Court have had a somewhat chequered history.

5. They were instituted by the filing of a claim on 30 November 2001. The respondent in this Court, Maxwell Property Consultants Pty Ltd, which was the plaintiff, claimed $28,003 plus costs. The claim as filed in the Magistrates Court did not contain any particulars.

6. Sometime later, on 17 July 2002, a judgment was entered by the respondent in default of defence.

7. On 16 October 2002, the appellant through his solicitors applied for an order setting aside the default judgment and for leave to file a defence.

8. The application was dealt with on 25 October 2002. The default judgment was set aside and the appellant was given leave to file a defence. The defence was filed on 1 November 2002.

9. From material filed in connection with the application to set aside the default judgment, it appeared that the respondent’s claim against the appellant was for arrears of rent payable pursuant to a lease agreement between the respondent as lessor and the appellant as lessee of shop premises of Hallett Cove.

10. In his defence, the appellant denied liability for the respondent’s claim and asserted that the respondent was estopped from pursuing the claim against him by reason of an alleged representation to the appellant that if the appellant obtained another tenant for the shop, premises the appellant would no longer have any liability to the respondent arising out of the lease.

11. He further alleged that the appellant successfully “acquired” for the respondent a tenant, namely Seafood Plus Australia Pty Ltd, and in those circumstances was no longer liable to the respondent.

12. On 26 November 2002 various orders were made in chambers in the presence of Mr Maxwell, who represented the respondent company, and Mr Ryan, a solicitor representing the appellant. The orders which were made on that date included an order that the respondent give further and better particulars of the claim within seven days with liberty to the appellant to file an amended defence and counterclaim thereafter, if so advised.

13. Importantly for present purposes, another order that was made on that occasion was that the matter be adjourned “for a conciliation conference on 18 December 2002 at 10.30 am in person before Dr Cannon”.

14. Further and better particulars of the respondent’s claim were duly filed on 4 December 2002.

15. At the conciliation conference on 18 December 2002, Mr Maxwell duly attended before Dr Cannon SSM, but there was no attendance by or on behalf of the appellant. Dr Cannon SSM thereupon entered judgment for the respondent against the appellant.

16. The fiat which appears on the file states in part:

    “Reasons given. Judgment for the plaintiff in the sum of $31,209.45. This is a final judgment of the Court and cannot be set aside other than on appeal through the District Court.”

17. Dr Cannon SSM then went on to deal with various costs of action which brought the total judgment up to $31,546.34.

18. Dr Cannon SSM subsequently published reasons which deal only with the method of calculation of the amount for which he had entered judgment.

19. By an application dated 21 January 2003, the appellant sought an order setting aside the judgment which had been entered on 18 December 2002 and again sought liberty to file a defence to the summons. That application is supported by an affidavit sworn by Mr Ryan in which, after referring to the orders made on 26 November 2002, he states that he neglected to enter the date of the conciliation conference into his diary and for that reason did not attend on 18 December 2002. He said:

    “My failure to do so was simply as a result of work pressures in the lead-up to Christmas.”

20. He said that he had discovered that he had failed to attend when required on his return to work in 2003 and on reviewing the file then.

21. The application to set aside the judgment came on for hearing on 31 January 2003 and was adjourned to 28 March 2003.

22. I have been informed by Mr Barnett, who appeared for the appellant on the hearing of the appeal to this Court, that on 28 March 2003 the matter was further held over pending the disposal of the appeal to this Court.

23. A notice of appeal to this Court was in fact filed on 24 February 2003.

24. The grounds set out in the notice of appeal are:

    “1.the appellant was not heard as to his defence;

    2.the appellant has a good Defence to the Claim;

    3.the Appellant was denied natural justice.”

25. Magistrates Court Rules r 101 provides:

    “Where a party fails to attend within 15 minutes of the time fixed for a conciliation or listing conference, directions hearing or trial, the court may give judgment or make an order against, and in the absence of that party, without hearing any evidence.”

26. There is provision in the Magistrates Court (Civil) Rules for applications to set aside or vary a judgment. In particular, Magistrates Court Rules r 87 provides:

    “(1)A court may set aside or vary a judgment (not being a final judgment).”

27. The expression “final judgment” is defined in Magistrates Court (Civil) Rules r 2 as meaning any judgment:

    “(a)made with the consent of the parties;

    (b)given at the conclusion of a contested hearing;

    (c)made in the terms of the acceptance of either an offer to consent to judgment or a payment of a sum of money to the registrar; or

    (d)a summary judgment.”

28. Having regard to that definition, in my view, the judgment in question was not a final judgment.

29. In Bauer v D’Arcy[1] a similar situation arose, in that a magistrate entered a default judgment against a party who failed to appear at a conciliation conference.

    [1] (1993) 169 LSJS 464.

30. In that case, a magistrate subsequently heard an application under Magistrate Court Rules r 87 to set aside the default judgment, but the application was refused and there was an appeal to this Court by leave.

31. In the course of his judgment in that case, Duggan J, who heard the appeal, observed:

    “The terms ‘judgment’ and ‘final judgment’ are defined in the rules and the argument before this Court proceeded on the basis that the judgment in the present case was not a final judgment.”

32. In my view, the concession made in Bauer v D’Arcy was correctly made.

33. It follows that the observation of Dr Cannon SSM to the effect that the judgment which he pronounced on 18 December 2002 was a final judgment is, with respect to him, an error. In any event, his indication that an appeal could only be brought through the District Court Act, again, with respect, does not appear to be correct.

34. Section 40 of the Magistrates Court Act (1991) provides for a right of appeal to this Court and not to the District Court, when judgment is given in an action in the Magistrates Court.

35. On the hearing of the appeal, Mr Maxwell appeared again on behalf of the respondent. I explained to him considerations relevant to the disposal of the appeal and I expressed a degree of sympathy with the fact that he was, once again, in court through no fault of his own on a hearing which, at best, was not likely to determine the matter one way or the other.

36. I further explained that the court generally endeavours to ensure that a claim that is genuinely defended, proceeds to trial so that there can be a decision on the merits. I further explained that, ordinarily, a default by a solicitor will not necessarily be held against the client, but that if any order was to be made giving relief to the appellant it would be on terms which would involve payment by the solicitor personally of any costs which might have been incurred as a result of his default.

37. Mr Maxwell, or at least his company, is entitled to have this matter disposed of one way or the other. If I make an order restoring the action and allowing it to go to trial, I would like to think that it can be brought to trial promptly in view of the unfortunate delays which have occurred.

38. I have perused the defence which was filed and there is also an affidavit of the appellant Mr Vorassi deposing to the merits of the defence. In my opinion, there is an arguable case which ought to go to trial and that, in those circumstances, and given the circumstances in which the judgment under appeal was entered, it is right that I should dispose of the matter in a way which will enable the merits eventually to be determined at a full-scale hearing.

39. There are various avenues which could be adopted in order to achieve that result. One of them would be to refer the matter back to the Magistrates Court for the application which was made under r 87 to be disposed of. However, that would give rise to still further delay and I do not think that that is the best course to follow.

40. The most expeditious way of dealing with the matter would seem to be for me to make the orders necessary to set the judgment aside and allow the matter to go to trial on the merits.

41. I therefore order:

    1.That the appellant have leave to appeal.

    2.That the time for the filing of the notice of appeal be extended to and including 24 February 2003 nunc pro tunc.

    3.That the appeal be allowed and that the judgment under appeal be set aside.

    4.That the defence already filed by the appellant be treated as the operative defence to the respondent’s claim.

    5.That the matter be brought to trial in the Magistrates Court at the earliest available date.

    6.That the appellant’s solicitor Sean Anthony Ryan pay personally the costs of the respondent of and incidental to the appeal and with respect to the conciliation conference to be taxed or agreed.

    7.That the costs to be paid by Mr Ryan be paid within 14 days of taxation or agreement.

    8.That the appellant’s solicitor Mr Ryan pay or bear the costs of and incidental to the appeal incurred by the appellant, to the exclusion of the appellant.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. (1993) 169 LSJS 464.