Eckert v Roberts - [2020] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
ECKERT v ROBERTS
[2020] SASCFC 71
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
23 July 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - ASSESSMENT OF DAMAGES
Application for leave, to the extent necessary, to appeal against orders made by a Judge dismissing the appellant’s application for directions for the undertaking of an assessment of damages ordered in favour of the respondent.
Held by the Court:
1. It is appropriate to assume without deciding that leave to appeal is required (at [24]).
2. The decision of the Judge is attended by sufficient doubt to warrant the grant of leave to appeal (at [38]).
3. If leave to appeal were not granted, Mr Eckert would suffer substantial injustice (at [42]).
4. To the extent necessary, leave to appeal granted (at [47]).

ECKERT v ROBERTS
[2020] SASCFC 71
Full Court: Kelly, Blue and Doyle JJ
THE COURT:

This is an application for leave, to the extent necessary, to appeal against orders made by a Judge of this Court dismissing the appellant’s application for directions for the undertaking of an assessment of damages ordered in favour of the respondent.
Background
The respondent, Paul Roberts, is the registered proprietor of approximately 185 hectares of farming land at Langhorne Creek used for viticulture and broad acre cropping.
In August 2015 Mr Roberts instituted an action against the appellant, Christopher Eckert, claiming that Mr Eckert was in possession of the land as a lessee; Mr Roberts had validly terminated the lease by re-entry on 2 March 2015 or alternatively with effect one month after service of the statement of claim; Mr Eckert became a trespasser from the date of termination; and Mr Roberts was entitled to damages for trespass to land and conversion of grapes grown on the land from the termination date. Mr Eckert counterclaimed, claiming that he was in possession of the land as beneficial owner pursuant to an agreement between the parties and relying upon a constructive or resulting trust.
Mr Eckert remained in possession of the land pending the trial and determination of the action. He later swore an affidavit deposing that in respect of 2015/16 he received sale proceeds of $261,725[1] from the 2016 grape harvest and $55,326 for barley and hay. He deposed that he incurred expenses in order to generate this revenue and also paid $45,000 bi-annually to Mr Roberts in September 2015 and March 2016 and $40,000 in October 2016.
[1] All dollar figures are rounded to the nearest whole dollar unless otherwise shown.
On 20 December 2016 the trial Judge delivered reasons for judgment upholding Mr Roberts’ claim and dismissing Mr Eckert’s counterclaim.[2] However, the trial Judge found that Mr Roberts had not proved the date…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eckert v Roberts

Details

AGLC: Eckert v Roberts [2020] SASCFC 71
Case: [2020] SASCFC 71
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of *Eckert v Roberts* involved an application for leave to appeal against orders made by a Judge of the Supreme Court of South Australia. The appellant, Mr Eckert, sought directions for an assessment of damages that had been ordered in favour of the respondent, Mr Roberts. Mr Roberts, the registered proprietor of farming land, had sued Mr Eckert, alleging he was a lessee whose lease had been validly terminated. Mr Roberts claimed damages for trespass and conversion of grapes. Mr Eckert counterclaimed, asserting beneficial ownership based on an agreement and alleging a constructive or resulting trust. The trial Judge found in favour of Mr Roberts on his claim and dismissed Mr Eckert's counterclaim, but crucially, did not determine the exact date of lease termination, which was essential for calculating the trespass period.

The legal issues before the Full Court concerned whether the primary Judge's dismissal of Mr Eckert's application for directions was a final order, thus not requiring leave to appeal, or if leave was necessary. If leave was required, the Court had to determine whether the decision was attended by sufficient doubt to warrant granting leave. This involved construing subsequent orders made by consent in February 2017, February 2018, and October 2018, which dealt with Mr Eckert remaining in possession, the proceeds of harvests, and expenses incurred.

The Court considered that the subsequent orders, particularly those relating to the 2018 harvest, created an ambiguity regarding the assessment of damages. While ordinarily, an assessor of damages cannot award "negative" damages, the orders made by consent appeared to contemplate that the assessment of damages would encompass future harvests and associated expenses. The Court noted that it was arguable that the orders granted Mr Roberts an interim entitlement to the proceeds of sale, subject to the final assessment, or alternatively, that these orders represented a final determination in favour of Mr Roberts on a "severe basis" regarding the 2018 harvest and its expenses.

The Court concluded that it was preferable to determine whether leave to appeal ought to be granted, assuming it was required, rather than definitively deciding whether the order was final. The existence of arguable questions of construction arising from the subsequent consent orders meant that the decision was attended by sufficient doubt to warrant the grant of leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for leave, to the extent necessary, to appeal against orders made by a Judge of this Court dismissing the appellant’s application for directions for the undertaking of an assessment of damages ordered in favour of the respondent.Background The respondent, Paul Roberts, is the registered proprietor of approximately 185 hectares of farming land at Langhorne Creek used for viticulture and broad acre cropping. In August 2015 Mr Roberts instituted an action against the appellant, Christopher Eckert, claiming that Mr Eckert was in possession of the land as a lessee; Mr Roberts had validly terminated the lease by re-entry on 2 March 2015 or alternatively with effect one month after service of the statement of claim; Mr Eckert became a trespasser from the date of termination; and Mr Roberts was entitled to damages for trespass to land and conversion of grapes grown on the land from the termination date. Mr Eckert counterclaimed, claiming that he was in possession of the land as beneficial owner pursuant to an agreement between the parties and relying upon a constructive or resulting trust. Mr Eckert remained in possession of the land pending the trial and determination of the action. He later swore an affidavit deposing that in respect of 2015/16 he received sale proceeds of $261,725[1] from the 2016 grape harvest and $55,326 for barley and hay. He deposed that he incurred expenses in order to generate this revenue and also paid $45,000 bi-annually to Mr Roberts in September 2015 and March 2016 and $40,000 in October 2016. [1] All dollar figures are rounded to the nearest whole dollar unless otherwise shown. On 20 December 2016 the trial Judge delivered reasons for judgment upholding Mr Roberts’ claim and dismissing Mr Eckert’s counterclaim.[2] However, the trial Judge found that Mr Roberts had not proved the date on which the statement of claim was served and hence the date on which Mr Eckert became a trespasser.[2] Roberts v Eckert [2016] SASC 197. The trial Judge made orders granting judgment in favour of Mr Roberts on the claim and dismissing the counterclaim. Although they were substantive orders by way of judgment and were to the same effect as the orders later made on 3 February 2017, they included an order that counsel be heard as to the form of the final orders. In January 2017 Mr Eckert filed a notice of appeal against the judgment. He filed an interlocutory application seeking a stay of the judgment pending the hearing and determination of the appeal. On 3 February 2017 the trial Judge made orders in chambers by consent (the judgment orders). The orders[3] included an order (strictly a declaration) that the lease was validly terminated one month from the date of service on Mr Eckert of the statement of claim dated 5 August 2015 without determining what that date of service was. They included an order that Mr Roberts was entitled to possession of the land, with the parties having liberty to apply as to the time within which Mr Eckert must give possession. They included the following orders:5.The plaintiff is entitled to recover from the defendant damages for trespass to the Land as from the date of termination of the Lease being one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.6.The plaintiff is entitled to recover from the defendant damages for any conversion of the grapes grown on the vines on the Land after the date of termination of the Lease being one month from the date of service upon the defendant of the statement of claim of the plaintiff filed on 5 August 2015 in this action.7.The assessment of the damages payable by the defendant to the plaintiff be conducted by a Master of this Court, and that the trial of all remaining questions in the action as to the assessment of the damages payable by the defendant to the plaintiff be remitted to a Master of this Court.[3] The full text of the orders is set out in Roberts v Eckert [2020] SASC 27 at [7].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Eckert contends that the order made by the primary Judge dismissing his application is a final order and therefore leave to appeal is not required. For reasons that will become apparent, it is preferable not to decide this question but to determine whether, on the assumption that leave to appeal is required, leave ought to be granted.Decision attended by sufficient doubt The first question to be considered is whether the decision of the primary Judge is attended by sufficient doubt to warrant the grant of leave to appeal. Ordinarily, when a Court grants judgment for damages to be assessed, the assessor on the assessment has no jurisdiction to assess “negative” damages and order that the applicant pay an amount determined on the assessment to the respondent. It follows that, if no other orders had been made and no other relevant events had occurred apart from the judgment orders made on 3 February 2017, the primary Judge’s first conclusion referred to at [22] above would be unassailable. However, the February 2017 orders, February 2018 orders and October 2018 order, and the conduct of the parties pursuant to them, raise quite different considerations and render this an extraordinary case. The February 2017 orders and undertakings were premised on Mr Eckert remaining in possession of the land, receiving the proceeds of the future harvest of grapes on the land and paying expenses incurred therein out of those proceeds. It is arguable that those orders were made on the basis that the assessment of damages the subject of order 7 of the judgment orders was to encompass the future harvest and expenses incurred therein on the basis that Mr Roberts could contend for an assessment on the severe basis disregarding those expenses and Mr Eckert could contend for an assessment on the milder basis taking into account those expenses. The February 2018 orders addressed the proceeds of the 2018 harvest by permitting Mr Roberts to harvest and sell the grapes but providing by order 8 that Mr Roberts’ harvesting of the grapes was without prejudice to any claim to be made by Mr Eckert “during the inquiry as to damages for any entitlement … or adjustment … in respect of his costs, labour or expenditure”, with it being noted that Mr Roberts denied any such claim. This gives rise to an issue of construction. On the one hand, it might be argued that the entitlement given by order 2(c) to Mr Roberts was not a final determination that he was entitled to the amount of the gross proceeds of sale but rather conferred on him an interim entitlement subject to the inquiry as to damages under order 7 of the judgment orders: if that inquiry determined that his ultimate entitlement was only to gross profit, he would be required to account to Mr Eckert for the difference between the amounts of gross proceeds and gross profit. On the other hand, it might be argued that the entitlement given by order 2(c) to Mr Roberts to harvest and sell the grapes was a final determination of the parties’ rights in respect of the 2018 harvest and expenses incurred to produce it in favour of Mr Roberts on the severe basis.

Ratio Decidendi

Legal Principle Established

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