WILTSHIRE-SMITH v Samuels - [2007] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WILTSHIRE-SMITH v SAMUELS
[2007] SADC 27
Judgment of Her Honour Judge Simpson
16 March 2007
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT
Appeal from decision of a Master refusing an extension of time within which to bring application to set aside judgment in default of appearance at trial - delay of over two months - no or no adequate explanation given for delay - consideration given to the fact that the appellant allowed time to elapse, to the desirability of finality of judicial determinations and to justice as between the parties - Held: no extension of time to bring application should be granted - application to set aside judgment should be refused in any event - appeal dismissed.
District Court Act 1991 s 43; (1992) DCR 3.04(d), 6.02, 75.14, 75.15; (2006) DCR 17, 292, referred to.
Hughes v National Trustees Executors & Agency Co Of Australasia Ltd [1978] VR 257; Shocked and another v Goldschmidt and others [1998] 1 All ER 372; Watson v Anderson [1976] 13 SASR 329, applied.

WILTSHIRE-SMITH v SAMUELS
[2007] SADC 27

This is an appeal, filed on 11 December 2006, from a decision of a Master delivered on 27 November 2006. The learned Master refused to grant an extension of the time for an application to be brought by the appellant to set aside judgment entered against him on 15 May 2006, in default of his appearance at the trial on 1 May 2006. The Master would have in any event dismissed the application to set aside the judgment. The reasons for the learned Master’s decision were posted to the parties on 29 November 2006.
The appeal is brought pursuant to section 43 of the District Court Act 1991, which relevantly provides
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a)     in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)     in any other case—to the Full Court of the Supreme Court.
District Court Rule 17 (2006) provides for an appeal from a judgment of a Master to the court constituted of a Judge. Pursuant to District Court Rule 292 (2006), the appeal is to be by way of rehearing and amongst other things, the court may draw inferences of fact, amend or set aside the judgment or orders appealed from and give any judgment the justice of the case requires.
The plaintiff filed a summons and statement of claim on 4 March 2004, in which she sought an order against the first defendant for specific performance or, in the alternative, damages for breach of an agreement between the plaintiff and the first defendant for the sale and purchase of certain land on the corner of Alfred and Richard Streets in Hallett in the State of South Australia. On the block of land, and in the shed erected on it, the plaintiff had stored ‘various motor vehicles and items of furniture, business stock and other personal property’, the value of which the plaintiff claimed exceeded $75,000.
On or about 14 December 2003, the appellant entered into a contract with the first defendant to purchase the land. He obtained possession of the land on or around 31 December 2003. The plaintiff was given notice to collect her property by 14 January 2004, to avoid the consequence of the appellant disposing of it himself. The appellant was the second defendant in these proceedings.
By her statement of claim, the plaintiff sought orders against both defendants restraining them from disposing of and damages for the wrongful detention and/or conversion in respect of identified personal property the plaintiff had stored at the property.
A trial was first listed for hearing on 22 July 2004. The hearing date was cancelled and a further hearing set down for 17 January 2005. The appellant filed a defence and counterclaim on 14 December 2004. The hearing of the matter was adjourned on the application of the first defendant, with whom the plaintiff later reached a settlement in principle.
On 12 May 2005, the appellant filed an application to amend his counterclaim. There were interlocutory proceedings in respect of his application over the next few months. As to the claim by the plaintiff against the defendants for damages in respect of her personal property, there was a dispute about the value of the property and orders were made in interlocutory proceedings on a number of occasions for the plaintiff to obtain expert valuation evidence and provide it to the defendants.
On 15 November 2005, the appellant also filed an application to dismiss the plaintiff’s action ‘on grounds of evidence submitted herewith’. The application was supported by an affidavit sworn on 14 November 2005, in which the appellant referred to continued delays, about which he had written to the Chief Justice in a letter dated 4 July 2005, exhibited to his affidavit. The appellant also exhibited a letter dated 9 March 2005 and one dated 31 May 2005 between his solicitors and the plaintiff’s solicitors in which there is some discussion regarding a compromise to the action. Otherwise, the correspondence exhibited to the appellant’s affidavit concerned in the main an issue regarding production of the Certificate of Title for the land.
The appellant remained aware of the plaintiff’s claim against him for damages. The letter dated 29 September 2005 from the appellant to the Registrar-General, Lands Titles Office, exhibited to the appellant’s affidavit, specifically refers to the ongoing claim by the plaintiff for damages against him.
On 12 January 2006, the action was listed for trial on 1 May 2006. The claim against the first defendant was resolved. The plaintiff discontinued against the first defendant on 25 January 2006. The first defendant took no part in the trial or on the application before the Master.
There is no question that the appellant was not aware of the hearing date. The appellant wrote to the court by letter dated 21 April 2006. The letter is three closely typed pages. The appellant advised the court that he would not be attending the trial on 1 May 2006, owing to work commitments in Queensland and, on account of the costs involved, he would not be instructing his lawyer to attend on his behalf. The appellant said in the letter that he was ‘loath to lose paid employment and incur considerable extra legal costs or travel expenses to attend a trial at which there is no liklihood (sic) of recouping any costs even in relation to past proceedings where costs have been reserved in my favour.’ The appellant said:
I ask that you do not adjourn the case but determine a finding based on the facts currently before the court, bearing in mind that the issue is now one of minor civil action and should not be before this court once the question of ownership of the real estate was determined by Simpson J (sic) in March 2004.
The appellant told the court that he was prepared to withdraw his counterclaim, and to settle the matter for the costs associated with the orders in relation to a caveat initially lodged by the plaintiff. The appellant set out ‘a brief summary of the events’, ‘for the court’s benefit’. He concluded the letter as follows:
I respectfully request you dismiss Samuels action in accordance with my recent application and award costs for what it is worth, so that the whole matter may be brought to an end.
The plaintiff attended the trial on 1 May 2006, having travelled from Queensland. The appellant did not appear. The court found that the plaintiff was entitled to judgment in her favour in default of the appearance of the appellant, pursuant to District Court Rule 75.14 (1992), and proceeded to assessment of damages. The plaintiff gave evidence. No valuation evidence from an expert valuer appears to have been called, but the court carefully considered each item for which damages were claimed.
In the judgment delivered on 15 May 2006, the court referred to the items contained in the list, Exhibit B, to the plaintiff’s affidavit filed with the originating process on 4 March 2004. Damages were assessed by the court in the sum of $59,007. Judgment was entered in favour of the plaintiff in the sum of $59,007, plus a sum in respect of interest, fixed at $5186, plus costs to be taxed. The counterclaim of the appellant was dismissed. The appellant was sent a copy of the orders made and the reasons for the decision by letter of the same date.
The appellant filed an application to set aside judgment entered against him in default, together with an application to extend time, on 27 July 2006. In his supporting affidavit, the appellant again set out the circumstances of his non-attendance at trial, and referred to:
·delay in the proceedings generally
·the failure by the plaintiff to provide valuation evidence before trial in accordance with orders made
·a belief on his part, fostered by the lack of valuation evidence from the plaintiff, that the items in respect of which compensation was sought were likely to be found to be of no significant value and, in particular, would not amount to a sum in the vicinity of $75,000, and
·his belief that the court would consider his application to dismiss the plaintiff’s claim.
There is no doubt that the appellant disputed the value of the personal property, the subject of the plaintiff’s claim for damages, from the outset. His affidavit sworn on 8 March 2004 makes that clear. The appellant obtained a valuation from a valuer, Mr Dempsey, at Pickles Auctions Pty Limited, on around 29 June 2004. The difficulty for the appellant is that he chose not to attend court at trial to challenge the value of each item in respect of which the plaintiff claimed damages, he chose not to present himself or any other evidence at trial and he relied on a court arriving at the same conclusion as he had in relation to the plaintiff’s claim. It is clear that he expected the claim to be a minor one or that it would be dismissed.
As to the application for the court to extend time within which to bring the application to set aside the judgment, in his affidavit in support, the appellant referred to contacting his former counsel to engage solicitors on 19 May 2006 and to engaging solicitors on 30 May 2006, with the intention of proceeding to defend the claim with solicitors. There is no explanation for a delay of nearly two months after engaging solicitors and before the application was brought.
District Court Rule 75.15 (1992) provided that any judgment, order or verdict where a party does not appear at trial may be set aside by the Court upon an application made within seven days after the trial. The court had and has power to extend the time pursuant to Rule 3.04(d) or Rule 6.02 (1992), or Rule 117(2)(b) (2006), on such terms -
‘as the justice of the case may require’. (Ratnam v Cumarasamy [1965] 1 WLR 8; [1964] 3 All ER 933). The object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice – cp Schafer v Blyth, [1920] 3 KB 140 at p. 143 per Lush J., - an observation directed, however, to the terms of O.64 r.7 of the rules there under consideration on the hearing of an application to set aside a judgment in default of appearance. (Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257 at 262-263)
The justice of the case requires consideration of the desirability of finality of judicial determinations, the interest of a successful litigant in knowing the claim has been finally determined, whether justice as between the parties is best served by granting or refusing the extension sought, the conduct of the applicant for an extension of time, for example, in allowing time to elapse, and the prospects of a successful defence to the plaintiff’s claim. (Hughes v National Trustees Executors & Agency Co. of Australasia Ltd above at 263-264)
In this case, I infer that the appellant knew of the decision within a day or two of 15 May 2006 when it was posted to him. The time within which the application was to be brought was seven days. The appellant had been advised by solicitors in the past and there is no reason to suppose he could not have made an inquiry, following delivery of the judgment, about the prospects of and procedure for setting it aside. There are obvious reasons why a relatively short period is provided for under the rules of court, in particular, those referred to above.
The appellant first contacted counsel on 19 May 2006 and solicitors on 30 May 2006. The application was not filed until 27 July 2006. No explanation for the delay has been given. I agree with the learned Master that the appellant has not referred to any grounds on which a discretion to extend the time could be exercised. Justice as between the parties is best served by refusing the application to extend the time within which to bring an application to set aside judgment.
Many of the same considerations as apply to the application to extend time apply to the application to set aside the judgment. In this case, the plaintiff was entitled to judgment in default of the appellant’s appearance at trial. The plaintiff was put to the inconvenience and expense associated with travelling from interstate for the hearing. The plaintiff called evidence at the trial and damages were assessed on the evidence presented to the court.
The appellant was entitled to an opportunity to attend court and to present his defence. He had that opportunity and he chose not to avail himself of it. The decision of the appellant not to attend was a deliberate one. The appellant was aware of the claim against him, the nature and subject matter of the claim and the potential quantum of it. He may have misapprehended the nature of trial proceedings and the risks to which he was exposed by not attending at trial, but he had had legal representation and chose not to brief counsel on his behalf. It seems that the appellant assumed that the court would take the same view as he did of the claim and the basis for it. He expected that at the hearing, a court would see matters his way. The evidence and submissions which the appellant wishes to present at trial might support a successful defence to the plaintiff’s claim, but there is also the prospect that a rehearing might be futile. There is a significant public interest in there being an end to litigation. (Shocked and another v Goldschmidt and others [1998] 1 All ER 372 at 377-380)
In my opinion, the learned Master was right to consider it appropriate to refuse the appellant’s application to set aside judgment. Upon the material placed before the court, the appellant has not established that there is a real likelihood it would be unjust to him to allow the judgment to stand. (Watson v Anderson [1976] 13 SASR 329, at 333-334, 337-338, 342)
I would refuse the application to extend the time within which to bring the application to set aside the judgment delivered on 15 May 2006. I would refuse the application to set aside the judgment.
The appeal against the decision of the Master on 27 November 2006 is dismissed.