Britten v Dente

Case [2025] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

BRITTEN & ORS v DENTE & ORS

[2025] SASC 88

Decision of the Honourable Justice B Doyle  (ex tempore)

28 May 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - PROPER OR NECESSARY PARTY AND STANDING

By originating application made on 6 September 2024, the appellants instituted a proceeding in this Court seeking, inter alia, relief against forfeiture against the first and second respondents, in respect of leased premises in Richmond.  The lessee under the relevant lease was the second appellant, CJDJ Pty Ltd (‘the company’).  The first appellant (Ms Britten) was for a time the sole director and shareholder, but is presently an undischarged bankrupt.  The third appellant (Mr Britten) is the sole shareholder of the company. 

The proceeding was listed before an Auxiliary Associate Justice on 13 September 2024.  Ms Britten was incarcerated on that day, and was unable to attend.  There was no appearance by Mr Britten, nor by any person seeking to represent the company.

The judge considered that there was no utility in adjourning the proceeding because the application failed to disclose a reasonable cause of action and unnecessarily named a number of parties to the proceeding.  The judge further concluded that the applicants’ non-attendance indicated a failure to prosecute their claim.  The judge noted that 15 minutes had passed since the hearing was to commence and dismissed the action, referring to r 145.2(3) of the Uniform Civil Rules 2020 (SA) (‘UCRs’).

On 12 February 2025, an appeal was commenced.  The appeal was listed for hearing on 6 May 2025.  On that occasion, only Ms Britten appeared.  As an undischarged bankrupt without her trustee in bankruptcy's approval, she was unable to appear in her own right, and accepted that having resigned as a director, could not seek to appear for the company. 

Over the opposition of the first and second respondents, the Court adjourned the matter until 28 May 2025, but directed that any material to be relied upon by the appellants relating to representation, the extension of time required for the institution of the appeal, leave to appeal, and the explanation for their procedural defaults, be filed by 14 May 2025. 

No material was filed in compliance with that order.  However, on 26 May 2025, two affidavits were provided to the Court in the name of Mr Britten and Ms Britten.  On the same day, the first and second respondents made an interlocutory application seeking the dismissal of the proceeding for non-compliance with the rules and the orders of the Court.

At the hearing on 28 May 2025, only Ms Britten was in attendance.  She again accepted she could not represent the company, but requested that the Court appoint her as Mr Britten’s litigation guardian.

Held:

1.the judge’s decision was interlocutory, and leave to appeal was required; 

2. the affidavits sworn by Mr…

Continue reading Britten v Dente

Sign in free to access the full text

Details
AGLC
Britten v Dente [2025] SASC 88
Case
[2025] SASC 88
Decision Date

CaseChat Overview and Summary

The case of Britten v Dente, decided on 12 September 2024, involves a dispute over the validity of an interim application filed by Mr. and Ms. Britten, seeking relief against forfeiture of a lease and other related claims. The respondents, including the Dentes and others, sought to have the application dismissed. The legal issues before the court included whether the applicants had standing to bring the claims, whether the application disclosed a reasonable cause of action, and whether the court should dismiss the proceeding under the relevant procedural rules for failure to prosecute. The court considered the submissions made by counsel for the respondents, who argued that the applicants lacked standing and that the application failed to identify a valid cause of action against the respondents.

The Auxiliary Associate Justice, after reviewing the affidavits and submissions, found that the applicants had not demonstrated a reasonable cause of action against the respondents. The court observed that the applicants, Mr. and Ms. Britten, appeared to be the directors of a company that was the tenant of the property, but they were not authorized to represent the company in the proceedings. Additionally, the court noted the absence of the applicants, including Ms. Britten who was in police custody, and the lack of any appearance by the applicants at the hearing. The court held that the application failed to identify a valid cause of action against the respondents and that the applicants had not shown any utility in continuing with the proceedings. Consequently, the court dismissed the application with no order as to costs.

The final orders of the court were that the application filed by Mr. and Ms. Britten be dismissed, and no costs were awarded. The dismissal was based on the failure of the applicants to prosecute their claims, the lack of standing of the applicants, and the absence of a reasonable cause of action against the respondents. The court also noted that the applicants had unnecessarily named additional parties in the proceedings, which further contributed to the dismissal of the application. The court's decision underscores the importance of ensuring that proper parties are before the court and that applications disclose a valid cause of action to be considered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE J
On 12 September 2024, an affidavit sworn by Mr Britten earlier in August of that year was filed in the proceeding. In it, Mr Britten described an increase in electricity activity and power bills. He stated that a complaint was made to the Office of the Technical Regulator. He states that he believed he and Ms Britten had paid for electricity stolen from them which would amount to around $5,000.The challenged decision and the merits of the appeal Because the Originating Application sought interim interlocutory relief, the matter was listed for a hearing on 13 September 2024 at 11.30 am. The Dentes were legally represented. Mr Mastrangelo appeared for the fourth respondent, of which he is the managing director. Mr and Mrs Cripps appeared in person. The Auxiliary Associate Justice indicated that the Court had been advised that Ms Britten had been refused bail on criminal charges, was currently in the Christies Beach police cells, and so was unable to attend. Counsel for the Dentes informed the Court that it was CJDJ Pty Ltd that was the tenant, that Ms Britten was an undischarged bankrupt and that there was no explanation why Mr Britten was not present. He requested that the matter be called outside Court. The names of the applicants were called outside Court and there was no appearance for any applicant. Counsel for the Dentes made brief submissions by reference to Ms Britten and Mr Britten’s affidavits. He submitted there was no cause of action identified against the respondents apart from the lessor. In respect of his clients, he submitted that:·there was no claim that could be advanced by Mr or Ms Britten in their individual capacities, including arising out of any exercise of distraint rights;·the only claims could be on behalf of CJDJ Pty Ltd, but it could not be represented by Ms Britten, and there was no application by Mr Britten to appear for the company;·CJDJ Pty Ltd had subsequently paid outstanding rent to satisfy the distraint, with the result that it would be entitled to recover its goods back, and there was no dispute about that (from the perspective of CJDJ Pty Ltd);·to the extent that CJDJ Pty Ltd was wanting relief against termination of the lease, that would only be available in limited circumstances. The unpaid rent in this case had been $9,000. The lease was terminated ‘in a very conventional manner … some two to three months ago’. Delay was a factor against relief against forfeiture because the lessor must now be free to get on and re-let the premises. Her Honour then gave ex tempore reasons for dismissing the proceeding, observing:[T]he lessor re-entered the property and terminated the terms of the lease. By these proceedings, the Applicants seek to be able to re-enter the property or reinstate the lease based upon the law of relief of forfeiture. It would appear that the First and Second Applicants are the directors of the Third Applicant. The First Respondent and the Second Respondent are the trustees of Third Respondent. It is not entirely clear to me why the Fourth, Fifth and Sixth Respondents have been named to the proceedings. It seems that the Fifth and Sixth Respondents sold a business to the Applicants, which the Applicants also take issue with. There is no appearance for any of the Applicants and the matter has been called in the court precinct. During the hearing, the Court received notification that the Second Applicant had been refused bail on criminal charges and is currently being held in the Christies Beach cells. Be that as it may, I still see no utility in adjourning these proceedings because the application that has been filed fails to disclose a reasonable cause of action and has unnecessarily named other parties to the proceedings. In addition, the failure by any of the Applicants to attend today's directions hearing indicates a failure to prosecute their claim. Having heard the submissions of counsel on behalf to the First to Third Respondent, I am satisfied that it is appropriate for the action to be dismissed with no order as to costs.Furthermore, the matter was listed to commence at 11.30am. The time is now 11.51am and there is still no appearance for any of the Applicants. In accordance with rule 145.2(3), I am entitled to make an order that the application be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE J

Full text does not contain this section.