Log In

Reset Password

Rent row case to have court hearing after magistrate’s ‘fundamental error’​

A dispute between a landlord and tenant is to go back for trial after appeal court judges found that a magistrate was wrong to make a ruling without hearing evidence.

The panel was told there was “an established practice” in Magistrates’ Court where this approach was at times taken when a defendant did not appear at trial.

In reasons for the ruling, Justice of Appeal Sir Maurice Kay explained that Risa Green, the tenant, and Tiffany Mahraoui, the landlord, entered a tenancy agreement in September 2019.

Ms Mahraoui launched proceedings in Magistrates’ Court in January, 2020, when she claimed “$9,701 in respect of rent, damage to the property and other matters”.

Mr Justice Kay said the claim was later amended to $14,713.

Further particulars were filed by Ms Mahraoui on February 18, 2020 followed by a defence from Ms Green two weeks later.

The case was listed for trial on October 5 of that year, after a number of earlier trial dates were adjourned. Neither the tenant nor Arthur Hodgson, then her lawyer, attended.

Mr Justice Kay wrote: “The landlord’s counsel applied to the magistrate for a judgment in default of appearance, and Magistrate Chin ordered judgment in default of appearance in the sum of $17,771.

“Apparently, on October 5, the tenant, who had recently returned from the United States, was in quarantine, and Mr Hodgson, who had been unwell, arrived at court after judgment had been entered.”

Ms Green successfully applied to set aside the default judgment and Ms Mahraoui, represented by lawyer Christopher Swan, challenged that decision in the Supreme Court.

Mr Justice Kay wrote that, at an appeal hearing in front of Assistant Justice Jeffrey Elkinson on April 25 this year: “The tenant was not present and was not represented.”

He said Mr Justice Elkinson made an ex tempore – at the time – ruling and entered judgment for the landlord in the sum of $17,771 plus costs.

Ms Green filed an appeal against that decision in May and the case was heard on November 10.

Mr Justice Kay, whose reasons were backed by Sir Christopher Clarke, the Court of Appeal president, and Justice of Appeal Geoffrey Bell, said: “Our decision to allow the appeal was on a basis that called for no consideration of the merits of the underlying case or of the way in which the proceedings have been conducted in the past.

“It rested on a fundamental point of procedure.”

He wrote that Ms Green’s defence, filed on March 3, 2020, “amounted to a complete denial of liability”.

Explaining the hearing of October 5 that year, Mr Justice Kay wrote: “ … being satisfied that the tenant knew of the listing and the proposed increase in the quantum of the claim, and having received no explanation for the absence of the tenant and her attorney, Magistrate Chin simply entered judgment against the tenant for the increased amount claimed.

“No evidence was adduced at the hearing.”

He pointed out that the “governing procedure” at the time was in order 15 of the Magistrates’ Court Rules, where it was provided in order 15/4 that if a defendant does not appear, under certain circumstances, the court can “proceed to hear the suit and give judgment on the evidence adduced by the plaintiff”.

Mr Justice Kay said that provision was not followed by the magistrate.

He added: “No evidence was given; that was a significant error.

“He should have, at least, required the landlord's attorney to call his client in order to prove the case.

“A suitably sceptical judge would no doubt also have probed the issue of the spectacularly increased quantum of the claim.

“What happened in the proceedings thereafter was all constructed on that fundamental error.”

Mr Justice Kay wrote: “The problem was later compounded in the Supreme Court, when Assistant Justice Elkinson purported to quash Magistrate Chin's ruling, whereby he had set aside the so-called ‘default judgment’, and to restore that judgment in the sum of $17,771.60.

“When we raised this procedural history with Mr Swan, he informed us that there is an established practice in the Magistrates’ Court, pursuant to which, when a defendant does not appear at trial, the magistrate will proceed as Magistrate Chin did in this case.

“He said that a magistrate will sometimes follow the procedure prescribed by Order 15/4 and require the claim to be proved by evidence.

“But on other occasions, the requirement of proving the case in that way is dispensed with.

“There is no legal basis which permits the latter course.”

Mr Justice Kay suspected that “somewhere along the line” magistrates confused the procedure that should be adopted with another – in a situation when a defendant is absent and does not provide written notice of a defence, admission or counterclaim.

He added that the case between Ms Green and Ms Mahraoui was “a demonstrably defended suit”.

Mr Justice Kay wrote: “In these circumstances, any established practice of the kind described by Mr Swan is without authority”.

The Court of Appeal also ended a garnishee order that meant Ms Green’s wages were held.

Ms Green said yesterday: “Justice delayed is justice denied and I’ve suffered a great deal emotionally and financially over the last two years throughout this battle but I’m relieved that the Court of Appeal saw the injustice and allowed my appeal.”

She thanked Eron Hill, who acted as her McKenzie friend – someone who supports a self-represented litigant.

Ms Green said that he pursued her case “with a fervent passion and commitment for justice”.

Mr Hill, who described the appellant as a hard-working mother of a young daughter, added: “I am grateful to the Court of Appeal for correcting what can only properly be described as a gross injustice suffered by Ms Green.”

He said: “The Court of Appeal’s ruling paves the way for countless others who have suffered similar injustices to appeal their case and I’m sure that they will.”

Mr Swan confirmed that the case would “absolutely” continue.

He added: “Ms Mahraoui will have her day in Magistrates’ Court.”

Magistrate Tyrone Chin and Mr Justice Elkinson were contacted for comment but none was received by press time.

To read the judgment in full click on the PDF under “Related Media”.