Tay v Safetly Lawyers & ors [2000] NSWSC 844

New South Wales Supreme Court

CITATION : Tay v Safetly Lawyers & ors [2000] NSWSC 844 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11304/00 HEARING DATE(S) : 24 August 2000 JUDGMENT DATE : 24 August 2000

Joseph Chew Kiat Tay (Plaintiff/Appellant) PARTIES : Fallon Safetly Lawyers (First Defendant/Respondent) Magistrate Dive (Second Defendant) Magistrate Barkell (Third Defendant) JUDGMENT OF : Dunford J

LOWER COURT Local Court JURISDICTION : LOWER COURT 9009/98 FILE NUMBER(S) : LOWER COURT Mr JR Dive LCM & Ms CJ Barkell LCM JUDICIAL OFFICER :

COUNSEL : Plaintiff in person Mr M Pesman (First Defendant / Respondent) SOLICITORS : Plaintiff in person Fallon Safetly Lawyers (First Defendant / Respondent) CATCHWORDS : Local Courts - procedure - application to set aside judgment - trivial amount LEGISLATION CITED : Local Court (Civil Claims) Act 1970, s 69(3) Justices Act 1902, Pt 5 DECISION : See para 22

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Thursday, 24 AUGUST 2000 11304/00 - Joseph Chew Kiat TAY v Fallon Safetly Lawyers & ors JUDGMENT 1 HIS HONOUR: These proceedings were commenced by summons, and although the appellant appears in person before me today, the summons was drafted by a solicitor. Notwithstanding that, I find the summons difficult to understand. It appears, and the appellant confirms, that what he is really seeking to do is to appeal from the decision of Mr JR Dive LCM sitting in the Local Court (Civil Claims Division) on 2 July 1999, appeal from a further decision of Ms CJ Barkell LCM sitting in the Local Court (Civil Claims Division) on 28 April 2000, and obtain leave to appeal out of time in respect of the decision of 2 July 1999. 2 The proceedings are brought pursuant to s 69(3) of the Local Court (Civil Claims) Act 1970 ("the Act") and Pt 5 of the Justices Act 1902. 3 The proceedings were commenced in the Local Court by a Statement of Claim filed on 7 August 1998 in which the respondent (a firm of solicitors) claimed $600 for legal fees allegedly due to it by the appellant. As the amount involved was less than $3,000 the matter was properly a matter for the Small Claims Division: s 12(3) of the Act and Pt 3 r 9 of the Local Court Rules. 4 The appellant filed a Verified Defence in which he asserted that the costs would not become payable until the case in which the respondent was acting for him was finalised, and he also disputed the amount of the claim. 5 A pre trial review, in accordance with Pt 9 r 8 of the Rules was set down for hearing on 3 November 1998 but Mr Tay did not appear and the matter was adjourned at his request until 17 November 1998. Mr Tay appeared in person on that day and the matter was set down for hearing on 14 January 1999. 6 On 14 January 1999 Mr Tay did not appear and the matter was heard ex parte pursuant to Pt 21 r 2(1)(b). His explanation for his non appearance on that occasion was that he was confused as to the date. 7 A judgment inclusive of costs was entered in the sum of $1,105. 8 On 15 April 1999 Mr Tay filed an Application to Set Aside the Judgment which was set down for hearing on 21 May 1999. There was no appearance by Mr Tay on that day and the Notice of Motion was dismissed and an order for costs was made in favour of the present respondent. 9 It appears from subsequent material that the reason why Mr Tay failed to appear on 21 May was that the person who he had engaged to look after his business while he attended court was late in arriving due to train delays, with the result that Mr Tay was late getting to court, and by the time he arrived his application had been struck out. 10 Mr Tay, therefore, lodged a further Application to Set Aside the Judgment on 2 June and that was set down for hearing on 2 July. It is the judgment on this application that is the first of the matters appealed against, and in respect of which Mr Tay seeks leave to appeal out of time. 11 Mr Tay was unrepresented, but the transcript shows that he was given the opportunity to put his case. 12 The Magistrate referred to the fact that Mr Tay had made a mistake as to the first date and to the fact that he was late on the second occasion due to the late arrival of his employee. He noted that there had never been a hearing on the merits but, nevertheless, refused the application for the following reasons: Firstly, it was a very small claim which had already been subject to a pre-trial review, an assessment hearing and a motion which had been struck out. Secondly, the Magistrate considered where the balance of the interests of justice lay. He noted that Mr Tay disputed the amount of the bill, that he did not consider that he got the appropriate legal advice and that he claimed the agreement was that he would not have to pay the solicitor's bill until the case was finalised and, accordingly, he found that there was a real question as to the merits of the defence, but said that it was a very small case and small cases should not come back to the court on a number of occasions, and that there was no justice in forcing the respondent to come back on further occasions to run the case over and over again, having regard particularly to its small amount. 13 He therefore dismissed the application to set aside the judgment and ordered the payment of $400 for the costs of the motion. 14 Apart from the question of costs, I can see no error in the Magistrate's reasons. Notwithstanding the real issues raised by Mr Tay, in the circumstances of this case where there had been a number of previous hearings, I consider that it was proper for the Magistrate to take into account the small amount of the claim, the number of appearances there had already been and the additional costs that would be caused by bringing the parties back to the court yet again. 15 However, I am satisfied, on Mr Pesman's concession, which is most proper, that the Magistrate was in error in ordering the payment of costs in the sum of $400. The Rules limit costs in such applications to $160, although this being a motion to set aside the judgment it was not being heard in the Small Claims Division but in the General Division: Pt 3 r 11. 16 The lack of merit in the appeal would normally be sufficient to dispose of the application for an extension of time to appeal, and there is a further reason why the application for leave to appeal out of time should be refused; namely, the great lapse of time between the handing down of the judgment on 2 July 1999 and the institution of the present proceedings on 26 May 2000. However, because of the error in relation to the costs, and because I consider that costs in a case such as this should be kept to a minimum, I will grant leave to appeal, notwithstanding the lapse of time. 17 After an Application to Pay the Judgment Debt by Instalments, which was consented to on 12 August 1999, Mr Tay filed a further Application to Set Aside the Original Judgment. It came before the court on 30 March. There was no appearance by Mr Tay but it was adjourned to 28 April when it came before Ms Barkell LCM. 18 On this occasion Mr Tay was represented by a solicitor, Mr Ma. His application was heard but again refused. The Magistrate gave reasons at p 17 of the transcript and, in essence, those reasons were that this was merely an application for a rehearing of the Application which had been dismissed on 2 July the previous year. 19 In my view, the Magistrate was correct in so holding, and was correct in dismissing the application for that reason. She made an order for costs against the plaintiff in the sum of $160. 20 For these reasons I am satisfied that, except in respect of the sum of $400, costs ordered on 2 July 1999, the Magistrates have made no error. 21 The question, therefore, is what order I should make on this appeal. Section 110 of the Justices Act 1902 provides that where there is a mistake or any error of law in the order but there were sufficient grounds to have authorised such an order without the mistake or error, the Court, instead of remitting the matter to the Local Court to be further dealt with, may amend the order and determine the appeal as if the mistake or error did not exist. 22 I, therefore, make the following orders: · I grant leave to appeal out of time in respect of the orders of the Local Court dated 2 July 1999. · I uphold that appeal in so far as it relates to the order for costs but otherwise dismiss the appeal and confirm the orders of the Local Court. · The order for costs is set aside and in lieu thereof an order made for payment of the present respondent's costs in the Local Court in the sum of $160. · The appeal in respect of the order of the Local Court of 28 July 2000 is dismissed and I confirm the orders of the Local Court. · I note that the total amount presently payable pursuant to the judgment and orders of the Local Court as varied by this Court is $1,585, made up of the judgment of 14 January 1999 $1105, a costs order of 21 May 1999 $160, a costs of order of 2 July 1999 $160, a costs order of 28 April 2000 $160, together, all with interest thereon in accordance with the Local Government Rules. · I order the appellant to pay the respondent's costs of the appeal and order that he have a certificate under the Suitors Fund Act. · Exhibits to be returned after twenty eight days. oOo