Eckert v Roberts - [2018] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
ECKERT v ROBERTS
[2018] SASCFC 21
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
6 April 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
HIGH COURT AND FEDERAL COURT - HIGH COURT OF AUSTRALIA - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS
Application for stay of execution of order to vacate and hand over possession of farming land pending the determination of an application for special leave to appeal to the High Court.
Held: Application refused, short interim stay granted to facilitate the bringing of a stay application in the High Court.
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84, (1986) 161 CLR 681; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118, considered.

ECKERT v ROBERTS
[2018] SASCFC 21
Full Court: Kourakis CJ, Stanley and Nicholson JJ
THE COURT

On 22 December 2017, this Court dismissed an appeal by the applicant[1] from a trial judgment by Hinton J of this Court[2] delivered on 20 December 2016[3] in favour of the respondent. A fundamental matter in issue between the parties was the question of the equitable ownership of certain farming land (“the land”) which the applicant has occupied from about 1983, first as owner but in the latter years as the respondent’s tenant. The question of ownership was determined at trial and on appeal in favour of the respondent.
[1]    Eckert v Roberts [2017] SASC 176.
[2]    Roberts v Eckert [2016] SASC 197.
[3]    Hinton J delivered reasons for judgment on 20 December 2016 and entered formal orders on 3 February 2017.
On 2 February 2018, this Court made a suite of orders consequential on the Full Court’s judgment and with the consent of the parties. Those orders were intended, inter alia, to permit the applicant to continue to occupy the land and to farm it until shortly after the respondent had completed the 2018 harvest of grapes being grown on the land. Notwithstanding that the respondent was to remain out of possession during this period, the orders made provision for him to enter upon the land for various purposes, including the harvesting of the grapes.
Order 1 provided to the effect that the applicant was to give the respondent possession of the land:
By 5pm on the date being 14 days after the date that the [respondent] notifies in writing to the [applicant] as being the date upon which the [respondent] has completed the 2018 harvest of the grapes grown on the grapevines on the land (“the date for possession”).
By an undated letter, acknowledged by the applicant to have been received late in the afternoon of Thursday 29 March 2018, the solicitors for the respondent notified the solicitors for the applicant that the harvest of the grape crop had been completed and that,…

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 [2018] SASCFC 21
Case: [2018] SASCFC 21
Decision Date: 6 April 2018

CaseChat Overview and Summary

The parties in this matter were Eckert and Roberts. The dispute concerned an application for a stay of proceedings pending an appeal to the Full Court of the Supreme Court of South Australia. The application was heard by Kourakis CJ, Stanley and Nicholson JJ.

The central legal issue before the Court was whether the applicant, Eckert, had established a sufficient likelihood of success on appeal to warrant the grant of a stay of proceedings. This involved considering the merits of the proposed appeal and the potential for irreparable harm if the stay was not granted.

The Court applied the principles governing applications for a stay of proceedings pending appeal. It considered the two-stage test: first, whether there was a *prima facie* case of error in the original decision, and second, whether the balance of convenience favoured granting the stay. The Court found that the applicant had not demonstrated a sufficient likelihood of success on appeal, nor had they established that the balance of convenience favoured the grant of a stay.

The application for a stay of proceedings was dismissed.

Orders