Angelou v Brandenburg - [2025] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
ANGELOU v BRANDENBURG
[2025] SASC 15
Judgment of the Honourable Justice McIntyre
14 February 2025
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
The application involves an appeal by the appellant against an order that directed the retention of $250,000 in the District Court Suitors Fund.
The appellant contends that there was an agreement for the immediate release of the funds to him and argues that the retention of the $250,000 is contrary to that agreement. He further asserts that the order effectively acts as a final determination of his claim and prevents him taking further steps in the District Court.
The respondent, on the other hand, maintains that this was an interlocutory decision requiring leave to appeal and that no error has been shown to warrant a grant of leave.
HELD:
1. The order is interlocutory in nature and may be heard by a Single Judge of the Supreme Court.
2. Under UCR r 213.1, leave to appeal is required.
3.The appellant has not demonstrated a process or outcome error sufficient to warrant overturning the lower court’s decision; accordingly, leave to appeal is declined.

Uniform Civil Rules 2020 (SA) r 213.1; District Court Act 1991 (SA) s 43(2), referred to.
Angleou v Brandenburg [2024] SADC 114; DP v Minister for Child Protection [2018] SASC 149 at [22] – [28]; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 ; SB, MF v Minister for Education & Child Development [2016] SASC 116; House v The King (1936) 55 CLR 499; Draoui v Le [2021] SASCA 33, considered.

ANGELOU v BRANDENBURG
[2025] SASC 15
Single Judge Appeal: Civil
McINTYRE J
Introduction

This is an appeal from a decision of Judge Slattery of the District Court of South Australia on 4 September 2024 in which he declined an application by the appellant for the payment to him of the sum of $250,000 deposited in the District Court Suitors Fund in this action.
For the reasons that follow, I conclude that this is an interlocutory decision and that leave to appeal is required under Uniform Civil Rule (“UCR”) 213.1. I decline to grant leave to appeal.
Background facts
The background to this matter is set out in detail in Slattery DCJ’s reasons for decision.[1] Relevantly, the respondent purchased a house property in Prospect in or about February 2015 (‘the Prospect property’). She was the sole registered proprietor subject to a registered mortgage in favour of Perpetual Limited. She lived in that property with the applicant’s son, Nikolaos Angelou, and their two children, until their separation in about December 2023.
[1] Angelou v Brandenberg [2024] SADC 114 (‘Slattery DCJ Reasons’).
On…

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 Angelou v Brandenburg

Details

AGLC: Angelou v Brandenburg [2025] SASC 15
Case: [2025] SASC 15
Decision Date: 14 February 2025

CaseChat Overview and Summary

The appeal in Angelou v Brandenburg was lodged by the appellant, who sought to challenge a decision made by the District Court in relation to a caveat registered over a property in Prospect. The dispute centred around the appellant's claim for a debt of $240,065 and his assertion of an interest in the property by virtue of an alleged contribution to its acquisition, maintenance, or improvement. The respondent, who purchased the property and lived there with the appellant's son and their children until their separation, had warned the caveat and sought its removal. The matter was resolved by consent orders that provided for the lifting of the caveat and the payment of a sum of money into the District Court Suitors’ Fund. However, the appellant's claim for enforcement of the debt remained unresolved.

The legal issues before the court included whether the appealed decision was interlocutory and therefore required leave to appeal under Uniform Civil Rule 213.1, and whether the court should interfere with the judge's findings of fact. The court considered the nature of the order made by the District Court, whether it finally determined the controversy or merely addressed procedural aspects of the case. The court also assessed the appellant's contention that the order had the effect of a final determination and precluded him from taking further steps in the District Court.

The court concluded that the appealed decision was indeed interlocutory as it did not finally determine the controversy between the parties. The consent orders made by the District Court addressed procedural matters related to the caveat and the payment into the Suitors’ Fund, but did not resolve the substantive claim for enforcement of the debt. The court found that the appellant's arguments did not demonstrate that the order had the effect of a final determination. Therefore, the appeal was interlocutory and required leave to appeal, which was not granted. The court also declined to interfere with the judge's findings of fact, affirming the procedural nature of the decision.

The final orders of the court were to dismiss the appeal and affirm the decision of the District Court. The court held that the appealed decision was interlocutory and that leave to appeal was required but not granted. The court did not interfere with the judge's findings of fact, and the substantive claim for enforcement of the debt remained unresolved in the District Court.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I conclude that this is an interlocutory decision and that leave to appeal is required under Uniform Civil Rule (“UCR”) 213.1. I decline to grant leave to appeal. Background facts The background to this matter is set out in detail in Slattery DCJ’s reasons for decision.[1] Relevantly, the respondent purchased a house property in Prospect in or about February 2015 (‘the Prospect property’). She was the sole registered proprietor subject to a registered mortgage in favour of Perpetual Limited. She lived in that property with the applicant’s son, Nikolaos Angelou, and their two children, until their separation in about December 2023. [1] Angelou v Brandenberg [2024] SADC 114 (‘Slattery DCJ Reasons’). On 29 January 2024, the appellant registered a caveat on the title of the Prospect property claiming an interest by virtue of an asserted contribution to its acquisition, maintenance or improvement. The respondent warned the caveat on 29 February 2024. On 7 March 2024, the appellant brought proceedings in the District Court claiming to be owed a debt in the sum of $240,065 and seeking an extension of time for the removal of the caveat.[2] The form used by the appellant was not in the form required under the UCR and it contained only a brief statement of claim as follows:[3]Action to stay the removal of a caveat pending suit, declaration that the applicant is entitled to use the respondent’s land as security for his loan debt and enforcement of the debt. [2] FDN 9 at 1 - 4.[3] Ibid. There is no pleading of material facts related to the purported agreement disclosed in the application. No further pleadings have been filed as required under the UCR. The only material filed in support the application came in the form of an affidavit affirmed by the appellant’s solicitor, Mr Peter Scragg on 7 March 2024.[4] The relevant portions of that affidavit are set out in Slattery DCJ’s reasons for decision.[5] In broad terms it appears that the appellant contends that he loaned an amount of $240,065 to the respondent to assist with the purchase of the Prospect property. There is no written agreement asserted nor are the terms of any oral agreement set out in the affidavit. [4] FDN 9 at 5 – 19.[5] Slattery DCJ Reasons at [8]. The respondent wished to sell the Prospect property and, following discussions between the parties and their legal representatives, consent orders were made on 18 March 2024. In summary, these provided for the lifting of the caveat and payment of the sum of $250,000 by the respondent into the District Court Suitors’ Fund. These consent orders effectively resolved the appellant’s application for the stay of the removal of the caveat and for the declaration concerning security over the respondent’s land. The orders did not resolve the appellant’s claim for enforcement of a debt. The matter then proceeded with various directions hearings in the District Court as set out in Slattery DCJ’s decision.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant lodged this appeal on 16 October 2024 setting out five grounds of appeal in his Notice of Appeal as follows:1.The order is contrary to the wish and request of the parties who agree that and have asked the Court to pay all the money in the suitors Fund to the applicant.2.The respondent is not claiming an interest in the money in the Suitors Fund under the Family Law Act or otherwise on account of receiving other assets of the relationship between herself and Nicholas Angelou. (the relationship) of an amount sufficient to meet her entitlement even if the money is regarded as being gifted by the applicant to the respondent and /or Nicholas Angelou (which is denied).and deemed to be an asset of the relationship for the purpose of a property division pursuant to the terms of the Family Law Act (again which is denied)3.Any claim by the respondent to the assets of the relationship can be satisfied from the other assets of the relationship the respondent having already received more than 80% of the other assets.4. Any court established by the Family Law Act (a “Family Court”) is not seized of a jurisdiction in relation to the assets of the relationship and in particular the money in the Suitors Fund until property settlement proceedings have been instituted under the Family Law Act which has not happened and may not ever happen.5. Under the terms of the order, an unresolved action in a Family Court not related to the property of the relationship, would still clog the right of the applicant to have access to the money in the Suitors Fund. Is this an interlocutory or final decision? The appellant contends that the appealed decision is not an interlocutory decision because the form of the order precludes the appellant from taking further steps in the District Court and therefore it had the effect of a final determination. If this was correct, I would not have jurisdiction to deal with this appeal. Section 43(2)(b) of the District Court Act 1991 (SA) provides that an appeal lies, in the case of an interlocutory judgment given by a Judge of the District Court, to the Supreme Court constituted of a single Judge and section 43(2)(c) provides that, in any other case, the appeal is to the Court of Appeal. The characteristics of an interlocutory decision have been considered in a number of cases. These are well summarised by Parker J in DP v Minister for Child Protection.[11] A distinction is to be drawn between an order that finally determines the controversy which is the subject matter of the action and one which determines an aspect of the procedure by which that controversy will be adjudicated. As Kourakis J (as he then was) stated in Hardel Pty Ltd v Burrell & Family Pty Ltd: [12]In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other.[11] [2018] SASC 149 at [22] – [28].[12] (2009) 103 SASR 408 at [34]

Ratio Decidendi

Legal Principle Established

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