Eckert v Roberts

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.