Brackenridge v Bendigo and Adelaide Bank Limited
[2022] SASCA 4
•21 January 2022
Supreme Court of South Australia
(Court of Appeal: Civil)
BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED
[2022] SASCA 4
Judgment of the Honourable President Livesey (ex tempore)
21 January 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - INJUNCTIONS TO PRESERVE STATUS QUO OR PROPERTY PENDING DETERMINATION OF RIGHTS
MORTGAGES - MORTGAGEE'S REMEDIES - INJUNCTION TO RESTRAIN EXERCISE OF MORTGAGEE'S POWERS - INJUNCTION TO RESTRAIN SALE
By interlocutory application dated 20 January 2022, the respondent sought orders that the applicant’s notice of appeal dated 9 December 2021 be struck out on the basis that it purported to bring an appeal against a Court of Appeal decision to the Court of Appeal.
By interlocutory application dated 30 December 2021, the applicant sought an interim injunction restraining the sale of his property pending the determination of his appeal against an order made by Bleby JA on 5 November 2021 refusing to stay a Court of Appeal decision upholding the respondent’s right of possession to his property. The applicant’s interlocutory application was brought on the grounds an interim injunction was necessary to preserve the subject matter of the appeal and prevent him sustaining irreparable prejudice.
Held (per Livesey P), dismissing the applications:
1. The respondent’s application to strike out the Notice of Appeal is dismissed.
2. The applicant’s application for injunctive relief is dismissed.
Uniform Civil Rules 2020 (SA) rr 212.3, 212.4, 212.5; Supreme Court Act 1935 (SA) ss 29, 50, referred to.
Brackenridge v Bendigo and Adelaide Bank Limited (No 2) [2021] SASCA 137; Vaughan v Dawson [2008] NSWCA 169, considered.
BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED
[2022] SASCA 4
Court of Appeal – Civil
LIVESEY P: In this matter the respondent has applied to strike out the applicant’s Notice of Appeal dated 9 December 2021 against an order made by Bleby JA refusing a stay on 5 November 2021. The applicant’s stay application followed very closely after the order for possession of the property made by the trial Judge was upheld by the Court of Appeal on 4 November 2021. The stay application had been made pending the making of an application for special leave to appeal to the High Court.
Since that stay application was refused by Bleby JA on 5 November 2021, no application for special leave to appeal has been made.
Separately, the applicant seeks an injunction restraining the sale of his property pending the determination of his appeal against the order refusing a stay. I am advised that settlement on the sale of the property is set for Monday, 24 January 2022.
The respondent submits that the decision made by Bleby JA on 5 November 2021 was a decision of the Court of Appeal, ancillary to the appellate proceeding in which judgment was delivered the previous day. Reliance is placed on r 212.5(1) of the Uniform Civil Rules 2020 (SA) (UCR) which states:
(1) Subject to any statute to the contrary and subrule (3), when the jurisdiction to hear and determine an appellate proceeding is vested in, or to be exercised by, the Court of Appeal, a single Judge may make interlocutory orders and other orders ancillary to the hearing and determination of the appellate proceeding.
It is said that no appeal can be made to the Court of Appeal against its own judgment. The appeal is, therefore, said to be incompetent and liable to be struck out.
In my view that is not what occurred in this case.
Bleby JA was not sitting as the Court of Appeal when he refused the application for a stay. He was not sitting as the Court of Appeal under UCR r 212.3(2) and there was of course no power to list the matter before him, for example, as a single Judge exercising the jurisdiction of the Court of Appeal under UCR r 212.4.
In my view the refusal to grant a stay may properly be described as a matter ancillary to the determination of an appellate proceeding but it was not the appellate proceeding. Where a single Judge makes orders under r 212.5(1) they are not orders of the Court of Appeal, though they may be the orders of a single Judge of the Court of Appeal. An appeal lies to the Court of Appeal against the refusal by a single Judge to grant a stay, see s 50 of the Supreme Court Act 1935 (SA) (the Act). Accordingly, I am not prepared to strike out the Notice of Appeal as incompetent.
The applicant’s injunction is sought pursuant to s 29 of the Act. The applicant says that he will sustain irreparable prejudice if an injunction is not granted and he emphasises that, whilst his application for a stay was refused, a stay ought not be confused with an injunction. Whilst that is undoubtedly so, whether an injunction is to be granted pending an appeal usually turns on similar considerations. These include whether there is a serious question to be tried, whether the appellant is likely to suffer injury for which damages will not be adequate and, finally, where the balance of convenience lies.
To a significant extent these matters were canvassed by Bleby JA in the course of his decision refusing a stay on 5 November 2021. Naturally those reasons do not address whether there was any serious question to be tried about that decision. Indeed, apart from highlighting the consequences of refusing the stay, the applicant did not identify any arguable error in the reasons of Bleby JA. In this case, and regardless of any serious issue to be tried, the evidence shows that the applicant is in no position to offer or meet an undertaking as to damages. Should the sale not settle on Monday, though the bank is to an extent protected, there is a risk of ongoing financial loss.
In my view, in the exercise of my discretion, this is not a proper case for the grant of injunctive relief. In forming that view I do not overlook the applicant’s delay.
In the circumstances I refuse to grant injunctive relief.
I accept that if the sale of the property does proceed on Monday, 24 January 2022 that may render the appeal otiose. I do not propose to make any order about that today. Rather, I will adjourn the appeal to the Callover on Friday, 18 February 2022. If the appeal is to be discontinued before then, contact can be made with my Chambers.
The orders of the Court are:
1. The respondent’s application to strike out the notice of appeal is dismissed.
2. The applicant’s application for injunctive relief is dismissed.
There will be no order as to costs.
3
0
1