Young v M & M Chen Pty Ltd Trading as Michael Chen & Associates

[2003] SASC 39

YOUNG v M. & M. CHEN PTY LTD
trading as MICHAEL CHEN & ASSOCIATES
[2003] SASC 39

Magistrates Appeal:  Civil

1. PERRY J.  (ex tempore)   This is an appeal against an order made in the civil jurisdiction of the Magistrates Court refusing an application by the appellant to set aside a default judgment which had been entered against him.

2. The proceedings in the court below were instituted on 1 June 2001 when the plaintiff, M & M Chen Pty Ltd, a firm of accountants, which is the respondent to the appeal, filed a claim in the Magistrates Court. In the claim, they sought $6,425 alleged to be moneys owing by the defendant to the plaintiff for professional services rendered up to 8 December 2000.

3. The summons was served by post by the court to Mr Young at the address shown in the claim; that is, TRW Electronics, 86 Findon Road, Woodville West, South Australia 5011.

4. On 29 June 2001 a request was filed for judgment to be signed in default of defence, which request was complied with.

5. Thereafter, nothing was heard from the appellant until after a bankruptcy petition issued on 22 July 2002 was served on him. That petition was based on an alleged act of bankruptcy constituted by a failure to respond to a bankruptcy notice.

6. There were some difficulties in serving the petition, but it is clear enough that the appellant’s awareness of the petition precipitated a belated application which he made in the Magistrates Court on 20 November 2002 to set aside the default judgment.

7. The application to set the judgment aside was supported by an affidavit sworn by Mr Young, who was representing himself. He denied receipt of the notice of the proceedings. He set out as his reason for disputing the claim that he had various claims, including claims for wages, against Mr Chen. He further asserted that Mr Chen had agreed he would not charge him for certain work that he did.

8. The affidavit (in fact, I think there are two which the appellant Mr Young filed in support of his application to set aside the judgment) contains a number of assertions which are difficult to understand, if not unintelligible, and certainly do not identify any clear basis upon which the claim might properly be defended, apart from the assertion that Mr Chen had agreed not to charge for certain work.

9. At all events, the application to set aside the judgment came before a magistrate on 2 December 2002, when, together with the other material to which I have referred, she received an affidavit filed on behalf of the respondent sworn by Ms Taryn Albury, solicitor employed in the office of the respondent’s solicitors, Marshalls. This contains information regarding a telephone conversation alleged to have taken place between Mr Marshall on 5 June 2001, which would be shortly after the appellant would have received the summons in the ordinary course of post.  On that date, the appellant telephoned Mr Marshall and gave a long, rambling dissertation asserting that Mr Chen was a “crook” and had “ripped him off”. In the conversation, the appellant denied that he owed anything. He continued to make a number of defamatory allegations and eventually hung up.

10. On the hearing of the application to set aside the default judgment, the appellant gave evidence and also called a Mr Weir, who was said by Mr Young to have owned the shop at the premises at which the claim had been directed; that is, at 86 Findon Road, Woodville West.

11. However, Mr Weir’s evidence was not entirely consistent with that assertion. Apparently he gave evidence that he was a “silent partner” in Mr Young’s business, and that he did not work in it.

12. No transcript is available of the evidence before the magistrate, but she gave ex tempore reasons which have been engrossed. The delivery of those reasons was interrupted by the appellant to the point at which she broke off without completing them, but reserving the right to publish further reasons should they be required.

13. In the result, she dismissed the application to set aside the judgment.

14. On my receipt of the papers in connection with the appeal, I caused a communication to be made to the magistrate as a result of which she furnished further, more complete reasons in support of the order which she made. Those further reasons are dated 5 February 2003. I gave the appellant an opportunity to read those further reasons at the commencement of the hearing of the appeal before me when he again appeared on his own behalf.

15. In those reasons, the magistrate summarises the evidence which was present before her and offers the conclusion that Mr Weir’s evidence did not support the chronology of events as suggested by Mr Young. She rejected the appellant’s evidence where it contradicted the evidence of Mr Weir. Furthermore, she preferred the account of events in the affidavit of Ms Albury where it conflicted with the appellant’s account.

16. She concluded as follows:

    “Mr Young has failed to establish that he was unaware of the claim before the court. He has failed to provide a reasonable excuse for not  having complied with the Magistrates Court Rules and the time limits fixed by the rules. He has failed to give a reason for not lodging a defence. He has failed to show he has an arguable case on the merits.”

17. In his notice of appeal to this Court, the appellant does not set out grounds of appeal, but attached an affidavit in which he set out the case which he wished to advance.

18. In the affidavit he asserts that he had furnished another affidavit of the magistrate proving that he did not owe any money and that he would have a barrister who would swear that:

    “We had an agreement that my barrister and my accountant would not charge me any fees. This was discussed on many occasions between the three of us which my barrister kept.”

19. The barrister is said to be Ms Deborah Strasnick, but she was not called in the court below. The appellant maintains that he was denied an opportunity to have the matter adjourned to enable her to be called. There is no affidavit or other evidence before me as to what she might say about the matter.

20. The affidavit gives a somewhat rambling account of his dealings with Mr Chen of the respondent firm, and asserts that the magistrate, whose order is under appeal, was “just not interested in the facts of the matter”. He further asserted that the claim “really has my brain screwed up trying to understand where she was coming from to me. She just did not try to understand the stress that I was under or once take any notice of the truth that I don’t owe the money”.

21. On the hearing of the appeal, I gave Mr Young every opportunity to expand on his assertions in the affidavit. As he was unrepresented I did not want to confine him strictly to the notice of appeal and the supporting affidavit which he had filed. I endeavoured to elicit from him facts which might have assisted me in coming to a view as to whether the magistrate’s conclusion that he was made aware of the claim filed in the Magistrates Court was in any way unsound.

22. He has, however, failed to satisfy me that there is any reason to interfere with her decision in that respect.

23. Once it is accepted that he rang up the solicitors for the respondent within a day or two of the date upon which the claim would have been served on him in the ordinary course of post, denying the claim, it seems to me that on balance of probabilities, the conclusion must follow that it is likely that he received the claim.

24. Having heard out Mr Young fully in advancing the appeal, he has not identified any error on the part of the magistrate which would justify overturning the conclusions to which she came.

25. In my opinion, the appeal must be dismissed and I so order.

    [AFTER HEARING THE PARTIES AS TO COSTS]

26. PERRY J.              I order that the appellant pay the respondent’s costs of and incidental to the appeal to be taxed.