Eckert v Roberts

Case [2021] SASCA 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

ECKERT v ROBERTS

[2021] SASCA 73

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

5 August 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - ASSESSMENT OF DAMAGES

Appeal against a decision of a single judge of the Supreme Court.

On a trial concerning the question of ownership of certain farming land, the appellant was found to be in occupation of the respondent’s land as a trespasser. He appealed against the trial judge’s decision, but was unsuccessful.

Following delivery of the appeal judgment, both parties filed interlocutory applications. The appellant’s application sought orders designed to address the consequences arising from his continued occupation of the farming land between the date from which he was found by the trial judge to be a trespasser and the date on which he finally vacated the land. The respondent, by his application, effectively sought to enjoin the appellant from taking any further steps in the proceedings.

A single judge of the Supreme Court dealt with both interlocutory applications. The appellant contended that he was entitled to recover possible overpayments to the respondent and a just allowance in respect of work he conducted on the land during the period of the trespass. However, on the first day of hearing, the respondent abandoned his claim for an assessment of damages for the trespass to the land and for conversion of grapes grown on the land, as he believed the appellant to be insolvent.

Notwithstanding that abandonment, the appellant contended that rights still flowed to him under the original orders made by the trial judge, and that he could still pursue an order for an accounting between the parties as part of the Court’s ‘working out’ jurisdiction, pursuant to rule 243(1) of the Supreme Court Civil Rules 2006 (SA). The judge dismissed the appellant’s interlocutory application.

On 23 July 2020, the Full Court granted the appellant leave to appeal against that decision.

Held, per Bleby JA (Kelly P and Doyle JA agreeing), dismissing the appeal:

1.  The respondent’s withdrawal of his claim for an assessment of damages meant that the appellant’s interlocutory application was not the subject of, or incidental to, any claim raising the jurisdiction of the Court.  The Court consequently had no power to determine whether the appellant had an entitlement to be compensated in respect of the five payments made during the period of the trespass, or in respect of his labour and expenses.

Supreme Court Civil Rules 2006 (SA) r 107(3)-(4), 243(1), 251; Federal Court of Australia Act 1976 (Cth) s 43, referred to.

Roberts v Eckert [2016] SASC 197; Eckert v Roberts [2017] SASCFC 176; Roberts v Eckert [2020]…

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Eckert v Roberts [2021] SASCA 73
Case
[2021] SASCA 73
Decision Date

CaseChat Overview and Summary

The South Australian Supreme Court, Court of Appeal, considered an appeal by Mr Eckert (appellant) against a decision concerning his entitlement to recover payments made to Mr Roberts (respondent) and compensation for labour and expenses incurred during a period of trespass. The dispute arose after Mr Eckert was found to be a trespasser on Mr Roberts' farming land. Mr Roberts had elected not to pursue his entitlement to damages for trespass and conversion of grapes.

The central legal issues before the Court were whether Mr Roberts could unilaterally withdraw his claim for an assessment of damages, and if so, whether Mr Eckert could nevertheless pursue his own claims for overpayments and for labour and expenses within those assessment proceedings. The Court also considered whether it had the power to make further orders to permit Mr Eckert's claims to be assessed, notwithstanding Mr Roberts' abandonment of his claim.

The Court reasoned that Mr Roberts, as the party with the entitlement to damages under the existing orders, was entitled to abandon that right. The original orders concerned an assessment of Mr Roberts' common law damages for trespass and conversion, and Mr Eckert had not established a cause of action for an account or a counterclaim for restitution at trial. Consequently, the Court held that Mr Roberts' withdrawal of his claim meant that the interlocutory application was no longer incidental to a claim raising the Court's jurisdiction.

The appeal was dismissed. The Court concluded that it had no power to determine Mr Eckert's entitlement to compensation for payments made or for his labour and expenses, as these were not the subject of a live claim before it following Mr Roberts' withdrawal.

Orders

Orders of the court

Held, per Bleby JA (Kelly P and Doyle JA agreeing), dismissing the appeal:

1. The respondent’s withdrawal of his claim for an assessment of damages meant that the appellant’s interlocutory application was not the subject of, or incidental to, any claim raising the jurisdiction of the Court. The Court consequently had no power to determine whether the appellant had an entitlement to be compensated in respect of the five payments made during the period of the trespass, or in respect of his labour and expenses.

Background

Background to the litigation

On a trial concerning the question of ownership of certain farming land, the appellant was found to be in occupation of the respondent’s land as a trespasser. He appealed, unsuccessfully. The present contest is over whether, and if so the extent to which, the appellant is entitled to recover possible overpayments to the respondent and a just allowance in respect of work he conducted on the land during the period of the trespass. This is in circumstances where the respondent has now elected not to exercise his entitlement to recover damages from the appellant for the trespass to the land and for conversion of grapes grown on the land.Background This matter has a convoluted history, which is set out in the trial judgment,[1] the appeal judgment[2] and the decision the subject of this appeal.[3] A brief summary of that history follows.[1] Roberts v Eckert [2016] SASC 197 (Hinton J).[2] Eckert v Roberts [2017] SASCFC 176 (Kourakis CJ, Stanley and Nicholson JJ).[3] Roberts v Eckert [2020] SASC 27 (Nicholson J). The respondent, Paul Roberts, has been a farmer since about 2003. He owned a 150-acre block called Nine Mile Farm. Before this, he worked in a hardware store in Strathalbyn where he met the appellant, Christopher Eckert. He had also come across Mr Eckert while doing some grape harvesting work for him. Mr Roberts later met Mr Eckert’s daughter, Rebecca Eckert. They commenced a relationship and married in February 2012. Mr Eckert owned, and lived and worked on, a 185-hectare farm in Langhorne Creek called Eckert Farm. He had done so since 1979. Eckert Farm is comprised of a vineyard of approximately 29.3 hectares, with the balance of the land used for cropping and sheep. By 2008, Mr Eckert had fallen significantly into arrears on a credit facility with Rabobank. The bank had held, as security, the titles comprising Eckert Farm. Rabobank instituted proceedings against Mr Eckert, and this Court made an order for possession on 20 August 2008. The order required Mr Eckert to deliver up possession of the land within 28 days of service of the order. Despite this, Mr Eckert remained in occupation and continued to farm the land. He did not finally resolve all issues concerning his indebtedness to Rabobank until 2013. Rabobank had difficulty finding a purchaser for Eckert Farm between 2008 and 2010. However, on 19 July 2010, Mr Roberts and Rabobank executed a contract for the sale and purchase of the farm. Settlement occurred on 31 August 2010. Around that time, Mr Roberts and Mr Eckert executed a Memorandum of Lease (‘the Lease’). Under the terms of the Lease, Mr Eckert was required to pay an annual rent of $63,000.00 plus GST, payable in monthly instalments. Mr Eckert did not pay rent on a monthly basis, despite the terms of the Lease. Rather he would pay amounts twice yearly in time for Mr Roberts to meet his Mortgage obligations. During the life of the Lease, Mr Eckert continued to farm the land, tend the vineyard and sell the farm’s produce.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Justice Nicholson summarised the issues arising before him accordingly:[11](i)Is the plaintiff entitled to elect to unilaterally waive or abandon his rights to an assessment of damages under Judge’s orders 5, 6 and 7.(ii)If so, can the defendant, nevertheless, himself pursue the assessments envisaged by Judge’s orders 5, 6 and 7 with a view to obtaining a determination of his positive monetary claims against the defendant, as earlier identified.(iii)In the alternative, does the Court have the power and should it exercise it to make further orders permitting the defendant’s claims to be assessed in these proceedings notwithstanding the plaintiff’s abandonment.(iv)If either the plaintiff cannot unilaterally abandon or the defendant is, nevertheless, entitled to pursue the assessment envisaged by Judge’s orders 5, 6 and 7, to what extent would the defendant be entitled to agitate any or all of his positive claims, earlier identified, within the assessment proceedings before a Master.[11] Roberts v Eckert [2020] SASC 27 at [29]The decision Justice Nicholson observed that orders 5 and 6 were final, and all appeal rights had been exhausted. The only issue remaining was the assessment of Mr Roberts’s damages for trespass and conversion in accordance with orders 5, 6 and 7 which, on their face, conferred an entitlement on Mr Roberts only. Order 7 was procedural, enabling that assessment. His Honour’s reasoning comprised the following steps:·as a matter of principle, Mr Roberts must be entitled to abandon any rights under the judgment that rested only with him. He could not be compelled to pursue the right before the Master. Whether such an abandonment had costs consequences was not in issue at that stage.[12]·the causes of action relied on at trial were the common law torts of trespass to land and conversion, which sound only in common law damages. Orders 5, 6 and 7 concerned, therefore, an assessment of such damages;·for Mr Eckert to have become entitled to an order for an account, he would have had to prove at trial that Mr Roberts was an accounting party.[13] Mr Eckert did not do so, nor did he seek at trial any relief of this nature. It was therefore not open for the trial judge to order an account pursuant to rules 6 SCR 243 and 6 SCR 251;·in these circumstances, it was not open to disregard the express terms of the orders in favour of an interpretation that an accounting between the parties was impliedly ordered. The orders were clear on their face. They conferred on the respondent alone a right to have his common law damages assessed. It followed that the respondent was entitled to unilaterally abandon that right;·Given this interpretation of the orders, Nicholson J noted that given the respondent had abandoned his right to have his damages assessed, the appellant had obtained the full benefit which any proved just allowance would have given him as part of the assessment process. To obtain a positive balance in his favour, the appellant would have been required to counterclaim at trial, relying on a claim in restitution capable of surviving his conduct as a trespasser. No such counterclaim was made.[12] Roberts v Eckert [2020] SASC 27 at [36].[13] Hancock v Rinehart [2015] NSWSC 646 at [338] (Brereton J).

Ratio Decidendi

Legal Principle Established

I would dismiss the appeal insofar as it seeks an account of the five payments during the period of the trespass, including those made pursuant to the undertakings, totalling $210,000. To do so says nothing about Mr Eckert’s ability to pursue a claim in restitution by means of a new action, or any basis of resistance to such a claim that Mr Roberts might then invoke.The application for an account of remuneration payable to Mr Eckert in respect of his labour and expenses in growing grapes on the land after 5 September 2015 Mr Eckert asserts no separate cause of action in respect of his labour and expenses in growing the grapes on the land during the period of trespass. Rather, he only seeks an allowance, to be set off against the damages payable to Mr Roberts, in respect of which he also, necessarily, seeks an assessment. He anticipates that once account is taken of Mr Roberts’s ‘self-help’, in retaining the proceeds of sale of the 2017 and 2018 vintages, the nett assessment would be in his favour. I have set out Nicholson J’s treatment of this aspect of the application, above.[61] Mr Eckert’s Defence and Counterclaim did not assert any cause of action seeking compensation for his labour and expenses. To make such a claim would have been inconsistent with his resistance to Mr Roberts’s case in trespass and conversion. Rather, Mr Eckert’s starting point on the interlocutory application was that Hinton J had made an order for an assessment of damages, which order had arisen out of Mr Roberts’s claim. That assessment would have incorporated an account of Mr Eckert’s labour and expenses. The order for an assessment having been made, he submitted that it ‘does not lie within the respondents to unilaterally withdraw jurisdiction at that stage’. Put differently, it was a necessary incident of the orders that rights then flowed in favour of Mr Eckert.[61] Roberts v Eckert [2020] SASC 27 at [60]-[61]. The difficulty with this submission is illustrated by the language used in its support. The language of a party being unable to ‘withdraw jurisdiction’ is problematic. As explained above, jurisdiction is the authority to decide justiciable controversies. It is comprised of subject matter jurisdiction and personal jurisdiction. It is dependent upon the making of a claim. A claim or part of a claim can, in the ordinary course, be discontinued at any time. At the time that Nicholson J was seized of this matter, the ability of a plaintiff to do so was governed by 6 SCR 107. In the circumstances, permission of the Court was required.[62] Permission might be refused (or a notice of discontinuance struck out) where a withdrawal amounts to an abuse of process, that is, where it is done for a collateral or improper purpose or for a purpose for which the process was not intended.[63] The onus to establish that lies with the defendant. [64] Permission will otherwise generally be granted on terms that do not disadvantage the defendant. To that end, the Rules made provision for costs consequences on a discontinuance.[65] Similarly, the principle of finality will, in some circumstances, warrant that permission only be given on terms that prevent a plaintiff from litigating the same subject matter at a later time.[66][62] Supreme Court Civil Rules 2006 (SA) r 107(3).[63] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; 46 ATR 13 at [13] (Lander J, Williams and Wicks JJ agreeing).[64] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345; 46 ATR 13 at [14] (Lander J, Williams and Wicks JJ agreeing).[65] Supreme Court Civil Rules 2006 (SA) r 107(4).[66] Pertsinidis v Australian Central Credit UnionLtd (2001) 80 SASR 76 at [95]-[97] (Williams J).