Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd and Other Actions (No 2)

[2006] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ANDREW GARRETT WINE RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD AND OTHER ACTIONS (NO 2)

Judgment of The Honourable Justice Vanstone

15 March 2006

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

Application for leave to appeal against dismissal of three appeals by single judge - criteria for grant of leave - whether questions of general principle raised - whether decisions attended by doubt - leave to appeal refused in each instance.

Supreme Court Act 1935 (SA), s 50; Real Property Act 1886 (SA), s 192; Supreme Court Rules 1987 (SA), r 83.01, r 94.01, r 95.15, r 106.05; Rules of the Supreme Court of Queensland 0.86 r 8, referred to.
Viscariello v Bernsteen Pty Ltd (in liq) (2004) 235 LSJS 277; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; SA Government Financing Authority v Bank of New Zealand [2002] SASC 56; McIver v Fruehauf [1989] 2 Qd R 577; Hamilton-Smith v Bernsteen Pty Ltd (in liq) [2005] SASC 190, considered.

ANDREW GARRETT WINE RESORTS PTY LTD & ANOR v NATIONAL AUSTRALIA BANK LTD AND OTHER ACTIONS (NO 2)
[2006] SASC 75

Application for leave to appeal

1. VANSTONE J: On 8 February 2006, I delivered a judgment in relation to three actions before this court, being numbers 127 of 2004, 422 of 2005, and 423 of 2005. The judgment is [2006] SASC 38. The orders I made included the dismissal of appeals against various orders of Masters of this Court. The basis of my orders was a lack of standing in the appellant, Mr Andrew Garrett, who was not a party to any of the actions.

2. Mr Garrett now applies for leave to appeal against those orders.  Pursuant to r 94.01(b)(i) the application has been made on an ex-parte basis.

3. The appeals process in relation to decisions of Masters of the Supreme Court is governed by s 50 of the Supreme Court Act 1935 (SA) and r 106.05 of the Supreme Court Rules 1987 (SA). Under s 50(2) of the Act and r 106.05(2)(b), an appeal to a single judge of the Supreme Court lies as of right, where the decision is other than final. Under s 50(1a)(c) of the Act a further appeal from the single judge to the Full Court of the Supreme Court seems to lie, but leave is required. In Viscariello v Bernsteen Pty Ltd (in liq) (2004) 235 LSJS 277 the Full Court referred to such an approach as reflecting the practice of the Court.

   Grant of leave to appeal - principles

4. The criteria for the grant of leave to appeal from such a decision by a single judge were referred to in Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61. The Full Court said:

   The court's practice has been to grant leave to appeal only if a question of general principle arises. The court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice require.

   The Full Court adhered to that approach in SA Government Financing Authority v Bank of New Zealand [2002] SASC 56.

5. In McIver v Fruehauf [1989] 2 Qd R 577, consideration was given to the grant of leave to appeal under O.86 r.8 of the Rules of the Supreme Court of Queensland. That order is in similar terms to our r 106.05. It provides that an appeal lies as of right from a Master of the Supreme Court of Queensland to a single judge of that court, and that a further appeal to the Full Court requires leave from the single judge.

6. Macrossan CJ held in McIver (at 578) that such leave should usually be granted only where there is a “question of importance upon which further argument and a decision of the appeal court would be to public advantage”. In finding that leave should not have been granted, Macrossan CJ emphasised the desirability of preventing unnecessary costs and delays in litigation, along with sparing the Full Court from devoting its attention to a matter unnecessarily.

7. Similarly McPherson J (at 580) approved the principle that the applicant “must at least be able to demonstrate prima facie error in the judgment of the Judge … and also that the question in issue be one of general importance, and, accordingly, one which the public interest requires should be the subject of further argument and decision in the Full Court”.  McPherson J agreed that the need to avoid repetitive or protracted litigation was a rationale for such constraint.

8. The desirability of restraining the overly litigious conduct of proceedings through excessive appeals upon matters of practice and procedure was also recognised in Hamilton-Smith v Bernsteen Pty Ltd (in liq) [2005] SASC 190 where the Full Court noted at [19] that disposal of cases could be delayed and costs multiplied if a tight rein were not maintained.

   Action 127 of 2004

9. This action involved two registered mortgages held by the defendant over Springwood Park, a property owned by the plaintiffs as registered proprietors.  The first plaintiff, Andrew Garrett Wine Resorts Pty Ltd (“Resorts”), held the greater interest in the property as trustee for the Springwood Park Unit Trust (“SPUT”), of which Mr Garrett is a beneficiary.  The second plaintiff was Ms A Garrett.

10. The defendant mortgagee sought an order for possession of the land on account of default by the plaintiffs.  That order was eventually obtained in 2004.  Ms Garrett became bankrupt in December 2004 and her trustee in bankruptcy did not elect to continue the proceedings.  Resorts was wound up in insolvency in May 2005 and its liquidators discontinued its part in the action.  Thus both plaintiffs have effectively abandoned the proceedings.  According to Mr Garrett, Resorts has been replaced by Evajade Pty Ltd as the trustee of SPUT.

11. The order for possession in favour of the defendant was granted subject to a right of re-delivery vested in the plaintiffs upon repayment of their debt.  However, that right of recovery was subject to legitimate exercise of a power of sale by the defendant.  The power of sale was indeed exercised by the defendant in January 2006, and settlement has taken place.

12. A number of applications were made at various times by Mr Garrett before Judge Lunn, a Master of this Court.  On 28 October 2005 the learned Master refused to permit Evajade to be joined as an intervenor, and refused Mr Garrett leave to substitute himself as a plaintiff.  On 7 November 2005, the Master struck out two Notices to Admit filed by Mr Garrett.  Finally on 13 January 2006, the Master dismissed numerous applications of Mr Garrett on the grounds that Mr Garrett lacked standing in the matter.  Mr Garrett appealed against all of these orders.

13. On the appeal, Mr Garrett claimed standing in this action on several bases:  as a beneficiary of SPUT, as an assignee of Evajade’s interests and causes of action as trustee of SPUT, and as a newly appointed trustee of SPUT personally.

14. Mr Garrett asserted on the appeal that he had been appointed a trustee of SPUT on 19 January 2006, six days after the decision of Judge Lunn. As evidence of this, he produced a document at the hearing of the appeal on 24 January 2006. This document purported to be an affidavit but was neither sworn nor filed two clear days before the hearing as required by r 83.01(1)(a) of the Supreme Court Rules 1987. In addition, its form was objectionable. The document was not accepted as evidence of factual matters, but only as written submissions to supplement Mr Garrett’s arguments. There being nothing else to support Mr Garrett’s assertions, his claim to standing was rejected.

15. On 7 February 2006, Mr Garrett filed sworn affidavits that included much of the same content as the document he produced at the hearing of 24 January 2006.  Mr Garrett now submits that the factual matters set out therein should be considered in his application for leave to appeal.  He argues there is now additional evidence before the Court which supports his standing, and hence warrants the grant of leave to appeal.  It should be noted that, again, the affidavits failed to comply with content requirements, in that they contained legal argument along with statements of fact.

16. Under r 95.15(b) the Full Court, in hearing an appeal, has discretion to receive further evidence on any question of fact.  This would usually require a notice for specific directions to be filed by the party seeking to introduce fresh evidence.  I note that Mr Garrett has not filed such a notice, although his application for leave to appeal is suggestive of a desire to introduce such evidence if leave is granted.  The factors weighing against the receipt of new evidence, which I referred to in my judgment of 8 February 2006, still apply.

17. Irrespective of whether the circumstances would justify the receipt of fresh evidence, the overriding problem with Mr Garrett’s application is that there are no substantive issues left to be determined in this action.  The orders granting the defendant possession of Springwood Park under the mortgages were upheld by the Full Court.  Subsequent litigation has focused on a right of the plaintiffs to re‑delivery of Springwood Park, upon repayment of the debt.  That right was said to arise from the terms of the orders for possession in favour of the mortgagees.  However, the right was expressly made subject to the due exercise of any power of sale vested in the defendant.  Now that Springwood Park has been sold, such right of re-delivery as existed is thereby extinguished.  In his application for leave to appeal, Mr Garrett claimed that several applications were still alive on the file.  Whether or not that is so, it is clear that no substantive rights to possession or re-delivery could now rest with the plaintiffs.

18. For these reasons there seems to be little doubt as to the correctness of the decision to dismiss Mr Garrett’s appeals and application for extension of time.  In light of the sale of Springwood Park, the action is exhausted and the question of Mr Garrett’s standing becomes academic at best.  There is no question of general principle involved, and the interests of justice do not require the grant of leave to appeal.

19. Accordingly, I would refuse leave to appeal in relation to action number 127 of 2004.

    Actions 422 and 423 of 2005

20. Both these actions involved a summons under s 192 of the Real Property Act 1886 (SA). Section 192 authorises registered proprietors, registered mortgagees, registered encumbrancees and lessors to summons a party in possession of land. None of the plaintiffs in either of the actions answer this description. Both actions were clearly doomed to failure on that basis alone.

21. At first instance Judge Withers, a Master of this Court, dismissed the actions as failing to disclose a cause of action and also refused Mr Garrett leave to intervene.  The appeals from the learned Master were dismissed on the basis of a lack of standing of Mr Garrett.  However, the conclusion that the actions were doomed on the plain terms of the Real Property Act was also upheld.

22. That last conclusion is also of relevance in considering the present application for leave to appeal.  Irrespective of the standing of Mr Garrett, it is clear that the actions would necessarily fail on the express terms of the Real Property Act.  No question of general principle or importance would therefore be raised on an appeal to the Full Court.  There is no injustice to any party in the denial of leave.

23. The application for leave to appeal against the orders in these actions must also be dismissed.

    Orders

24. The orders of the Court are that leave to appeal is, in each instance, dismissed.