Wood v Steer No. Scciv-02-1634

[2003] SASC 12

WOOD  v  STEER
[2003] SASC 12

1. Gray J                   This is an application for leave to appeal against the decision of a magistrate.

   Background

2. Peter Leslie and Helen Lorraine Steer as trustees of a private superannuation fund claimed the repayment of a loan from David Ashley Wood. It was said that monies had been advanced to Mr Wood and were repayable by him. Mr Wood wished to assert that he was not personally liable. He claimed to have received the monies as an agent and paid the monies to Capitol Hill Holdings Pty Ltd. That company is now in liquidation.

3. Judgment in default of appearance was entered against Mr Wood on 12 April 2002. On 29 October 2002 a magistrate refused Mr Woods’ application to set aside that judgment. Mr Wood has sought leave to appeal from the refusal of the magistrate.

4. The magistrate considered all the materials before him and concluded that Mr Wood had no arguable defence. The materials clearly justified such a conclusion. In his reasons the magistrate said:

   “I conclude that there is no view of the factual circumstance in this case, which could allow me to set aside the judgment and permit a defence as presently proposed. It is clear from all Mr Wood’s conduct at the time that these creditors were not properly regarded as creditors of the company and he was properly regarded as personally liable to them. I conclude that I should not allow the proposed defence, nor any defence at all, because the only conclusion is that Mr Wood himself was always personally liable. It may be that other persons are liable as well as him, but the plaintiff is content to pursue its judgment against Mr Wood personally and it’s clearly a valid judgment on any view of the facts and circumstances. I refuse the application to set aside the judgment.”

5. Counsel for the Mr Wood submitted that the magistrate had erred in concluding that there was no arguable defence. It was said that the magistrate erred in rejecting or failing to have regard to affidavit evidence of Mr Wood without testing the evidence by cross-examination or making findings as to credit.

6. Counsel for Mr Wood contended before this Court that the explanation that  money was paid to Capital Hill Holdings provided a complete defence. However documentary evidence from Mr Wood to Mr Steer did not support this claim. A letter from Mr Wood asserted that the money had been paid to an unidentified entity, David Co. This was contrary to the proposed defence. Counsel for Mr Wood could provide no documentation or information as to what happened to the monies. 

7. Counsel for Mr Wood accepted that no point of general principle arose. It was contended that the applicant on the facts had an arguable defence. Having reviewed the material and considered the submissions of counsel advanced in this Court I do not consider that an arguable defence has been disclosed. There is no reason to doubt the correctness of the magistrate’s decision. No injustice arises. The application for leave to appeal is refused.