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 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.
There was no formal application for payment out of the funds held in the Suitors Fund, but it appears that argument took place before Slattery DCJ on that issue on 26 August 2024 and 4 September 2024. The substance of the argument is set out in the reasons for decision.[6] At the heart of the submissions made by the appellant is the contention that the respondent agreed that the funds be paid out.
[6] Ibid at [27] – [31].
The only evidence in support of that contention was contained in the respondent’s affidavit affirmed on 28 August 2024. The respondent, who was by then unrepresented, set out a number of matters which do not sit comfortably together. First, she disputed that she owed the appellant the sum of $240,000 on the basis set out in the respondent’s affidavit. It appears that she accepts an amount of money was paid but says that this was a gift and not a loan. Second, she stated that there were “concurrent family law issues” between herself and Nikolaos Angelou concerning financial and other matters but then went on to say:[7]
It is pertinent to note that Mr Scragg’s office is representing Nikolaos Angelou in these concurrent family law proceedings. While I am accepting settlement of the present matter regarding the funds held by the district court between myself and Mr Theodoros Angelou, I do so without conceding any substantive issue between Nikolaos Angelou and myself.
[7] Ibid at [5].
Judge Slattery explored this issue with the respondent.[8] A number of things are apparent from that exchange. First that the respondent denies that she owes the applicant the claimed sum or that he ever had a caveatable interest in the Prospect property. Second that she was unrepresented and had not had the benefit of legal advice on the topic of payment out. In those circumstances there was considerable lack of clarity as to whether there was an agreement between the parties to these proceedings and, if there was, the nature and scope of that agreement. In addition, submissions were made about financial matters arising from the separation of the respondent and Nikolaos Angelou which were said to be the subject of proceedings on foot in the Federal Circuit and Family Court of Australia (‘FCFCOA’) and which arguably involved a consideration of the asserted debt.
[8] Ibid at [30] – [31].
Judge Slattery concluded his consideration of the evidence, the law and the submissions by saying:[9]
This discussion discloses that there are a number of issues that must be resolved between the parties and that in the circumstances the funds paid into the suitors’ fund must be preserved until a final resolution of those issues.[10]
[9] Ibid at [35].
[10] Ibid at [34]
Judge Slattery then made the following order:
The amount of $250,000 paid into the Suitors Fund in the name of this action under an order of this court is to remain in the District Court Suitors Fund until such time as there has been a resolution of the whole of the Family Court proceedings between Nicholas Angelou and (the respondent) or alternatively pending an order for the transfer of this proceeding to the Family Court at which time that sum may be paid into the equivalent of the Suitors Fund in the Family Court.
The Notice of Appeal
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]
A final order is one which precludes any further application for another or different orders[13].
[13] SB, MF v Minister for Education & Child Development [2016] SASC 116 at [47] – [55].)
The appellant says that the order made by Slattery DCJ was final in two senses. The first relates to what the appellant says was a determination that the appellant’s case must fail and the second relates to the form and effect of the order.
Dealing with the first issue, the complaint relates to the use of the term “fatal lacuna” and a contention that: [14]
The Court proceeded upon the erroneous conclusion that there was a “fatal lacuna” in the applicant’s case and therefore it must fail. The use of the word “fatal” supports the interpretation of the judgment that it considered that the applicant’s case must fail. This error alone invalidates the exercise of the discretion.
[14] FDN 8 at [31].
I do not agree. This submission misrepresents Slattery DCJ’s reasons. Judge Slattery set out in his reasons the lack of pleadings and material to support the claimed debt. These matters were self-evident and were appropriate matters to be considered. The “lacuna” comment arose in the context that counsel for the appellant had asserted to another judge that there were such documents and that “the matter” was not contested. Judge Slattery referred to this and then went on to say: [15]
I have already discussed the very obvious and perhaps fatal lacuna in the documentation filed in support of the application for the extension of time for the removal of the caveat. It does not disclose any documentation recording a loan or an agreement as alleged.
[15] Ibid [18]
The comment was qualified by the word “perhaps” so as not to express a final opinion. That is, Slattery DCJ left open the possibility that such documentation might yet be filed. Further, when read as a whole, it is plain that Slattery DCJ discussed, but did not resolve, the various legal issues that potentially arise in relation to the claimed debt as part of the process of considering the application for payment out. His conclusion that the funds must be preserved is predicated on there being outstanding issues to be resolved between the parties. I reject the suggestion that Slattery DCJ determined that the appellant’s case must fail.
The second matter raised by the appellant is that the order prevents him from taking further steps in the District Court. I do not accept that this is the case.
The form of the order is a product of erroneous submissions made before Slattery DCJ that there were concurrent proceedings on foot in the FCFCOA which had, as part of their subject matter, a dispute about the same funds. It is common ground that proceedings were not issued in that jurisdiction until 3 December 2024 by the respondent.
The respondent, in her affidavit, indicated that there were “concurrent family law issues”.[16] She did not explicitly state that there were proceedings on foot. This assertion was made by Mr Scragg on 26 August 2024 when he responded to Slattery DCJ’s invitation to provide some background to the matter as follows:[17]
MR SCRAGG:      Yes your Honour. What happened is Mr Angelou's son was in a relationship with Ms Brandenburg. They purchased a property in Prospect in the name of Ms Brandenburg. They were short of funds so my client gave them $240,000. There is contention but my client's assertion is that was a loan. Ms Brandenburg says that was a gift. In any event the couple have separated. There is proceedings in the Family Court in relation to the matrimonial assets. And what is proposed here is that his…
HIS HONOUR:     Stop there. Why isn't the argument about whether it was a gift or a loan a matter for the Family Court?
MR SCRAGG:     Well, this predates the Family Court proceedings and it's not necessary because there is sufficient other assets to do a proper adjustment between the parties without this money. So what was decided was to quarantine - I understand Ms Brandenburg's logic is 'I'll quarantine this part of the dispute. I'll get rid of it. I've got my rights which are preserved in the Family Court'. There is sufficient assets to settle the debt in the family - her entitlements for matrimonial distribution in the Family Court and leave some over for the son.
[16] CIV-24-002182, FDN 13 at [4].
[17] CIV-24-002182, TX 26 August 2024 at 2.
Later, in the same hearing, Mr Scragg advised Slattery DCJ that he was acting for the son, Nikolaos Angelou, in relation to family law matters and the following exchange took place:[18]
HIS HONOUR:    You can't tell me anything that's happened in the Family Court.
MR SCRAGG:     No, I'm not saying about that. What I'm saying is that there is sufficient equity left over to permit a 60/40 adjustment with these moneys even if they are deemed to belong to the husband being could for as his asset. So there is no reason why these proceedings should continue.
HIS HONOUR:    Then you are acting for Mr Nick Angelou. When will the Family Court proceedings be resolved?
MR SCRAGG:     I don't know in the sense that overlaying it serious children's issues and unfortunately –
HIS HONOUR:     The property dispute can be resolved without the question of the children’s issues being resolved, can't they?
MR SCRAGG:     Yes, it can be and it will be. But unfortunately one of the focuses has been on the children's issues recently. And I don't have the conduct of that. My associate has the conduct of that.
[18] CIV-24-002182, TX 26 August 2024 at 8.
There was some brief discussion on the topic of this matter possibly being transferred to the FCFCOA. The matter was adjourned on the basis that Mr Scragg was to advise the Court of the progress of the matrimonial property issues.
Plainly the information conveyed to the Court by Mr Scragg on 26 August 2024 was incorrect. When the matter resumed on the 4 September 2024 Mr Scragg did not correct his previous submissions despite the fact that the purpose of the adjournment was, inter alia, to establish the status of any FCFCOA proceedings. Indeed, even when Slattery DCJ indicated that he was not prepared to make orders for payment out of the funds and that the appropriate order would be for the funds to remain in the suitors’ fund “until such time as there is a resolution of the Family Court proceedings”[19] Mr Scragg did not object to say that there were no FCFCOA proceedings. It must have been abundantly clear that Slattery DCJ was proceeding on the basis that there were FCFCOA proceedings on foot and that this was a topic of some importance. Had Mr Scragg been aware of the true state of affairs it was incumbent upon him to advise the Judge accordingly. Mr Scragg’s explanation as to why he did not do so, in submissions before this Court, was incomprehensible and unsatisfactory. I find it difficult to accept that his failure to correct his earlier submissions was a mere oversight.
[19] CIV-24-002182, TX 4 September 2024 at 7.
The Judge formed the view, based on what he was told by the appellant’s counsel, that the unresolved dispute between the appellant and the respondent would likely be determined in the FCFCOA. Judge Slattery was entitled to rely upon counsel’s submissions. Had he not been so misinformed he might have made a different order to retain the funds in the District Court Suitors’ Fund. Even in its present form, the order does not operate as a stay of the District Court proceedings. It did not dispose of the debt recovery proceedings. The making of the order further did not preclude the making of an application for another order or for a variation of the existing order. Either party could, for example, have challenged the form of the order upon the filing of appropriate evidence such as, for example, an affidavit indicating that the appellant’s solicitor was in error when he informed Slattery DCJ that proceedings had commenced in the FCFCOA.
In any event, a distinction is to be drawn between the form of the order and the underlying decision. Slattery DCJ declined to order payment out of the funds in the Suitors’ fund. No substantive findings were made by the Judge as to the appellant’s entitlement or otherwise to the amount claimed; rather Slattery DCJ recognised that there was a controversy between the parties that required resolution. His decision was no more than a recognition of the need to preserve the subject matter of that controversy pending its resolution. It was a discretionary decision made on a matter of practice and law. That decision did not finally determine the matter. The appellant’s debt recovery action remains on foot in the District Court. There is nothing presently preventing him from pursuing it.

I conclude that the decision was interlocutory in nature and as such I have jurisdiction to hear this matter. A corollary of that is that I must consider the question of leave to appeal.
Leave to appeal
Leave is required to appeal the decision under UCR r 213.1 which provides as follows:
213.1—When required: Supreme Court
(1) Subject to any statute to the contrary, leave to appeal is required—
(a)     against an interlocutory decision (order or judgment), or any judgment or order (final or interlocutory) under Chapter 19 Part 3, 5, 11, 12, 13, 15, 16 or 17 by a judicial officer of the Magistrates, Youth, District or Supreme Court;
(b)     against a judgment on appeal;
(c)     against an order or judgment that relates to costs; or
(d)     if a statute so requires.
The principles of appellate restraint in House v The King apply.[20] Accordingly, it is necessary to consider whether the Judge:
·acted on a wrong principle;
·was guided by extraneous or irrelevant facts;
·mistook the facts;
·failed to take into account a material consideration; or
·reached an outcome which was manifestly unreasonable or plainly unjust.
[20] (1936) 55 CLR 499 at 505.
In Draoui v Le, the Court of Appeal reviewed a decision of a single Judge to dismiss a proceeding due to the applicant’s failure to pay security for costs. Doyle JA outlined the practical impact of the principles in House v The King as follows:[21]
In accordance with these principles, an appellate court may intervene in two broad categories of case. First, if it is established that the judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, or has not taken into account some material consideration. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion, despite the precise nature or source of the error not being identifiable. These two categories of case are sometimes distinguished from each other by referring to them as process and outcome errors, or as specific and inferred errors.
[21] [2021] SASCA 33 at [71].
Accordingly, considerations relevant to the question of leave to appeal and the House v The King restrictions are similar and collectively impose a heavy burden upon applicants to convince the court to displace discretionary interlocutory decisions. The applicant therefore needs to demonstrate not only that an error occurred, but that there was a specific or inferred process error. Bearing these principles in mind I will now proceed to the individual grounds of appeal.
The Appeal
Ground 1
The appellant contends that the order of Slattery DCJ is contrary to a purported agreement between the parties that the $250,000 should be paid out immediately. The appellant argues that both parties had consented to an immediate release of the funds, and thus the decision to retain them in the Suitors Fund is inconsistent with their clear intention.
The appellant did not file a formal application for payment out and, accordingly, did not file any affidavit in support of that application. The oral application and this appeal are based upon an asserted agreement between the parties. There was no evidence of that agreement before Slattery DCJ. On the contrary, there was a clear indication of an unresolved dispute between the appellant and the respondent. The claim for payment out of the funds is predicated upon an asserted entitlement on part of the appellant to those funds. There is no proper pleading setting out the nature of the entitlement and there is no evidence led in support of the proposition that the appellant has such an entitlement. Whether the dispute was to be resolved in the District Court debt recovery proceedings instigated by the appellant or in another jurisdiction such as the FCFCOA is not to the point. Given the unresolved dispute, preservation of the funds pending a final determination is a proper exercise of judicial discretion. Consequently, this ground fails to show any error warranting appellate intervention.
Ground 2 and 3
These grounds overlap to some extent. I will deal with them together.
The appellant contends that the respondent is not claiming an interest in the money in the suitors’ fund under the Family Law Act or otherwise because she has already received other assets of her relationship with Nikolaos Angelou and that, in any event, any claim can be satisfied from other assess of the relationship. The appellant’s arguments on these grounds are in effect a repetition of matters put to Slattery DCJ and considered at first instance. No error has been disclosed in his consideration. Indeed, the issue is not what claim the respondent was making. Prima facie, the funds from the sale of a property solely registered in the respondent’s name are hers. They were paid into the suitors’ fund to facilitate the sale of the Prospect property and to preserve an amount sufficient to cover the claim made by the appellant. That claim was, as set out above, disputed. The key issue remains unresolved: whether the claimed amount was a loan requiring repayment or a gift. The unresolved character of this amount means that the funds ought to be preserved. Again, the forum for the determination of that dispute is irrelevant to the exercise of the discretion. I consider that the retention of the funds is a proper exercise of judicial discretion and that this combined ground, therefore, fails to demonstrate an error.
Ground 4
The fourth ground of appeal contends that the FCFCOA is not seized of jurisdiction over the disputed funds until formal property settlement proceedings have been instituted under the Family Law Act. At the time of the issue of the notice of appeal those proceedings had not been issued. The appellant contended, in his notice of appeal, that funds should not be withheld pending resolution in a forum that was not seized of jurisdiction. This is an extraordinary contention in view of the fact that the order was made on the basis of Mr Scragg’s misleading submissions to Slattery DCJ.
The respondent contends, and it is not disputed, proceedings have now been initiated in the FCFCOA, and that the appellant is named as a party in those proceedings. The respondent says that the substantive issues are squarely within its jurisdiction. The respondent maintains that the order to retain the funds is a sensible interim measure designed to ensure that the funds remain intact until the FCFCOA can conclusively determine the parties’ rights.
It is my view that retaining the funds pending final determination of the issue in dispute either in the current proceedings or in the FCFCOA is a sound exercise of discretion. The complaint raised by this ground is as to the form of the order and not the underlying decision to refuse an application for payment out. The appellant’s attempted reliance upon an error caused by his own counsel’s inaccurate submissions is inexplicable. In any event, the error of fact was perfected when the FCFCOA proceedings were issued on 3 December 2024. Further, as set out above, there was no reason why the appellant could not have applied to the District Court for a variation of the orders on the basis that FCFCOA proceedings were not on foot. This is not a proper ground of appeal.
Ground 5
The appellant argues that the existence of the unresolved FCFCOA proceedings unduly “clogs” his right to access the funds held in the Suitors Fund. He asserts that such unresolved proceedings should not interfere with his entitlement to immediate payment. The respondent contends that the unresolved FCFCOA proceedings are directly relevant to resolving the fundamental issue of whether the funds represent a loan or a gift, which in turn determines the proper distribution of assets.
The unresolved nature of the substantive dispute justifies the temporary retention of the funds, and the appellant’s argument that the order “clog” his right is unfounded. He has yet to establish an entitlement to the funds. There is an active controversy between the parties. Consequently, this ground also fails to establish an error in the lower court’s decision.
Conclusion
The appellant has a heavy burden to discharge to obtain leave. The appellant has failed to demonstrate that Slattery DCJ, in dismissing the application for payment out of the funds in the Suitors’ Fund, acted on a wrong principle, was guided by extraneous or irrelevant facts, mistook the facts as they were presented or failed to take into account a material consideration when determining not to order the payment out of the Suitors’ Fund. I do not consider that the decision to continue to hold the money in the Suitors Fund is manifestly unreasonable or unjust such that it can be inferred that there has been a failure to properly exercise the discretion. The unresolved nature of the substantive dispute justifies the temporary retention of the funds. In all of the circumstances therefore I decline to grant leave to appeal. Even were I to grant leave, I would have dismissed the appeal for the same reasons.