Adelaide Hebrew Congregation Inc v Engel - [2007] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
ADELAIDE HEBREW CONGREGATION INC v ENGEL
[2007] SADC 23
Reasons for Decision of Her Honour Judge Simpson
6 March 2007
REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - POSSESSION
PRIVATE INTERNATIONAL LAW - CHOICE OF LAW - CONTRACTS
ARBITRATION - THE SUBMISSION AND REFERENCE - SUBMISSION AS A DEFENCE AND AS A GROUND FOR STAY OF PROCEEDINGS - STAY OF PROCEEDINGS - GROUNDS
Application by plaintiff for declaration that contract of employment between plaintiff and defendant has expired - order sought for possession of property occupied by defendant by virtue of provisions of contract of employment - assertion by defendant of right of tenure of employment under Jewish law and licence coupled with an equity entitling defendant to remain in occupation of property - whether reference by the defendant of a dispute between the parties to the Sydney Beth Din constitutes grounds for order staying proceedings - whether dispute beteween parties to be governed by Jewish law as a matter of procedure - whether application of Jewish law governs enforcement of rights under contract - Held: no grounds established to stay proceedings - applicable law the law of the State of South Australia - term of contract of employment has expired - plaintiff entitled to an order for possession of the property.
Commercial Arbitration Act 1986 s 53; Real Property Act 1886 ss 192-197; Associations Incorporation Act 1985 ss 23, 23A, referred to.
Rodgers and another v Moonta Town Corporation (1981) 37 ALR 49, applied.
Inwards and others v Baker [1965] 1 All ER 446; Vinden v Vinden [1982] 1 NSWLR 618; Crabb v Arun District Council [1975] 3 All ER 865; Bonython v Commonwealth of Australia [1951] AC 201; Soleimany v Soleimany [1999] QB 785; Mond and Mond v Berger and others (2004) 10 VR 534; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Ermogenous v Greek Orthodox Community (2002) 209 CLR 95, considered.

ADELAIDE HEBREW CONGREGATION INC v ENGEL
[2007] SADC 23

This is an application brought by Summons for an order for possession of land pursuant to section 192 of the Real Property Act 1886. The plaintiff, the Adelaide Hebrew Congregation Incorporated, is an association incorporated pursuant to the Associations Incorporation Act 1985. The plaintiff is the registered proprietor of a freehold estate in the land situated at 10 Windsor Road, Glenunga in the State of South Australia and comprised and described in Certificate of Title Register Book Volume 5787 Folio 630 as Allotment 111 in Filed Plan 15740 (‘the property’). The defendant, Rabbi Yosef Engel, is currently occupying the property, which is used for residential purposes.
The application is supported by the affidavit of Leon Vivian Zimmet affirmed on 14 February 2007. In his affidavit, Dr Zimmet sets out the basis for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adelaide Hebrew Congregation Inc v Engel

Details

AGLC: Adelaide Hebrew Congregation Inc v Engel [2007] SADC 23
Case: [2007] SADC 23
Decision Date: 6 March 2007

CaseChat Overview and Summary

Adelaide Hebrew Congregation Inc sought a declaration that the contract of employment between it and Mr Engel had expired and an order for possession of property occupied by Mr Engel by virtue of the contract provisions. The dispute came before the Supreme Court of South Australia. The central legal issues were whether the reference by Mr Engel to a dispute between the parties to the Sydney Beth Din constituted grounds for staying the proceedings, whether the dispute between the parties should be governed by Jewish law as a matter of procedure, and whether the application of Jewish law governed the enforcement of rights under the contract. The Court held that no grounds were established to stay the proceedings, and the applicable law was the law of the State of South Australia. The term of the contract of employment had expired, and the plaintiff was entitled to an order for possession of the property. The Court found that the reference to the Sydney Beth Din did not establish grounds for staying the proceedings, and the dispute between the parties should be governed by South Australian law rather than Jewish law. The Court further found that the application of Jewish law did not govern the enforcement of rights under the contract, and the plaintiff was entitled to an order for possession of the property.

Orders