Brownrigg v Kelton - [2005] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Leave to Appeal in Private)
BROWNRIGG v KELTON
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
23 February 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for leave to appeal in private - application for an extension of time - application for extension of time refused.
Supreme Court Rules R 95.02, referred to.
Kelton v Brownrigg (No 2) [2005] SASC 5, discussed.

BROWNRIGG v KELTON
[2005] SASC 59
Full Court: Doyle CJ, Vanstone and White JJ

FULL COURT: This is an application, by the defendant in an action in this Court, for an extension of time within which to appeal against a judgment in favour of the plaintiff in the action.
The trial Judge has already refused an application for an extension of time within which to appeal and has already refused an application for leave to appeal.
As the judgment in question is a final judgment, the defendant needs to obtain only an order extending the time within which to appeal. She does not require leave to appeal. Her application for leave to appeal is unnecessary.
The proceedings in question were initiated by the plaintiff, who brought an action against the defendant for an order for the sale of property jointly owned by them, and for division of the proceeds.
After a trial, the Judge made orders on 7 December 2004. He ordered, in effect, that unless the defendant purchase the plaintiff’s interest in the property, at a figure specified by the Judge, the property should be sold to Mr Kaplan at a price specified by the Judge, assuming Mr Kaplan remained willing to purchase the property. The Judge further ordered that if Mr Kaplan was unwilling to purchase the property at the specified price, the property should be sold at a public auction.
In his reasons the Judge has indicated how the proceeds should be divided, subject to any fine tuning that may be required.
The defendant had 14 days within which to appeal from that judgment: R 95.02.
On 21 December 2004, on the fourteenth day, the defendant applied for an order extending the time within which to appeal. The Judge declined to make that order on 22 December 2004: Kelton v Brownrigg (No 2) [2005] SASC 5 at [7].
The defendant then applied on 24 December 2004 for leave to appeal to the Full Court against the refusal of an extension of time within which to appeal: Kelton v Brownrigg (No 2) at [8].
In the reasons referred to, at [13], the Judge says that on 22 December 2004 he declined to extend the time within which an appeal might be lodged because there were no reasonable prospects of any appeal succeeding. In the reasons referred to, delivered on 17 January 2005, the Judge dismissed the application for leave to appeal to the Full Court, and appears to have formally dismissed the defendant’s earlier application to him for an extension of time within which to appeal: Kelton v Brownrigg (No 2) at [22]. The Judge also refused an application for a stay of his orders. He commented in these reasons that he was satisfied that the defendant was either deliberately obstructing the execution of the judgment and orders, or was so confused that she did not understand what was required to comply with the orders.
The Judge made further orders which were designed to enable the plaintiff to effect a sale of the property in accordance with the orders made by the Judge.
It is relevant to record here that if the plaintiff had filed a Notice of Appeal on 21 December 2004, her appeal would have been within time. Instead she sought an extension of time within which to appeal and, as already mentioned, that was refused.
By Notice for Specific Directions filed on 2 February 2005, the plaintiff has now, in effect, sought an extension of time within which to appeal. She has also sought leave to appeal against the Judge’s judgment (this appears to be unnecessary) and leave to appeal against the order refusing leave to appeal against the order refusing to extend time within which to appeal (which also appears to be unnecessary).
Bearing in mind that the defendant is and has been unrepresented, it is appropriate to treat this application as an application for an extension of time within which to appeal, the extension of time being all that the defendant requires.
The application for an extension of time within which to appeal may be made to the Full Court, and possibly must be made to the Full Court: see R 95.02 and Lunn’s Civil Procedure at [R 95.02.5(1A)].
The defendant explained her delay in appealing by referring to the fact that she is unrepresented, and says also that the closure of libraries over the Christmas holidays caused delay, because she needed access to them to prepare her application. She also relies on stress attributable to steps taken by the plaintiff to enforce the orders.
As the time for appealing has now expired, and in one way or another the defendant requires an extension of time, it is proper to consider the prospects of the appeal succeeding. It is relevant to the exercise of the Court’s ultimate discretion that the plaintiff indicated an intention to appeal within the required 14 days, but instead of appealing sought an extension of time on the fourteenth day.
The defendant’s written submissions are unhelpful. The defendant sets out a number of facts. Without reading the evidence it is impossible to tell whether all of them form part of the evidence. The defendant makes a series of complaints about the judgment which do not disclose any basis for concluding that the Judge is wrong.
In substance the defendant is arguing over the appropriate amount for the defendant to pay to the plaintiff if she is to buy him out, or the appropriate amount to be paid to the plaintiff if the proceeds of sale are to be divided. None of the points that she raises indicate that the Judge is wrong. It is relevant, to put the matter in context, to record that the defendant says that she should be able to buy the plaintiff out for a little under $57,000, rather than the amount of $63,500 fixed by the Judge. As this indicates, the amounts in dispute are not substantial. The argument is over the details of the order.
In essence the Judge approached the matter on the basis that the value of the property was indicated by the offer made by Mr Kaplan (that was the only evidence of value before him), and that however the property was to be dealt with (by the defendant buying the plaintiff out or by sale), the plaintiff and the defendant were to be repaid their initial contributions to the purchase of the property, a loan made to the defendant to enable the property to be purchased should be repaid, and the balance should then be divided equally.
There is nothing in the defendant’s submissions that suggests that is an incorrect approach in the circumstances. Most of the matters raised by the defendant are peripheral to the ultimate orders made.
Since the decision by the Judge on 7 December 2004, steps to effect the sale have been taken. This is a matter in which adherence to time limits is important.
If the defendant had identified an arguable reason for thinking that the Judge might have erred, we would have extended the time within which to appeal. She has failed to do so. Accordingly, we refuse the application for an extension of time.