Foundas v Heritage and Peoples Choice Limited

[2023] SASCA 87

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

FOUNDAS v HERITAGE AND PEOPLES CHOICE LIMITED

[2023] SASCA 87

Judgment of the Court of Appeal  

(The Honourable Justice Doyle and the Honourable Justice David)

14 August 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

MORTGAGES - ESTATE, RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE - POSSESSION

Application for leave to appeal from the decision of a single judge dismissing an appeal from an order of a magistrate to the effect that the respondent was entitled to sell or dispose of certain goods as unclaimed goods under the Unclaimed Goods Act 1987 (SA).

The applicant was the registered proprietor of a residential property which was subject to a mortgage granted by the applicant as security for a loan he had obtained from the respondent. 

The respondent commenced proceedings against the applicant seeking possession of the property and an order for possession was made. 

A number of goods and personal items were left in the property. The respondent made various email attempts to arrange for the applicant to remove the remaining goods. No agreement was reached in relation to the remaining goods, and they were subsequently moved into storage. The respondent’s solicitors wrote to the applicant warning that if the remaining goods were not collected within 42 days they would become unclaimed goods for the purpose of the Unclaimed Goods Act and the respondent would be entitled to sell or dispose of them. The remaining goods were not collected.

Held (per the Court), dismissing the application:

1.the applicant’s proposed grounds of appeal do not raise any arguable basis for concluding that the magistrate (or single judge) erred, or any issue of principle of general importance; and

2.      leaving the orders below to stand would not cause the applicant any substantial injustice.

Unclaimed Goods Act 1987 (SA) ss 5, 6, referred to.
M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; McDonald v Attorney-General for South Australia [2022] SASCA 43, considered.

FOUNDAS v HERITAGE AND PEOPLES CHOICE LIMITED
[2023] SASCA 87

Court of Appeal – Civil:  Doyle and David JJA

1. THE COURT:  The applicant seeks to appeal from the decision of a single judge dismissing an appeal from an order of a magistrate to the effect that the respondent was entitled to sell or dispose of certain goods as unclaimed goods under the Unclaimed Goods Act 1987 (SA). The applicant requires leave to appeal, and an extension of time.

2. For the reasons which follow, while it is appropriate to grant an extension of time, the application for leave to appeal should be refused.

   Background

3. The applicant (Mr Foundas) and his wife (Mrs Foundas)[1] were the registered proprietors of a residential property in Murray Bridge.  The Murray Bridge property was subject to a mortgage granted by Mr Foundas as security for a loan Mr and Mrs Foundas had obtained from the respondent (Heritage and People’s Choice Limited, formerly Australian Central Credit Union Limited).

   [1]     Named as an interested party in these proceedings.

4. In November 2000, the respondent commenced Supreme Court proceedings against Mr Foundas seeking possession of the Murray Bridge property.  An order for possession was made in May 2021.  Mr Foundas’ attempts to appeal this possession order were unsuccessful.

5. The respondent sought to enforce the possession order, and a warrant of possession was issued.  In November 2021, the warrant was executed by the sheriff’s office, and vacant possession of the Murray Bridge property was delivered to the respondent.

6. A number of goods and personal items were left in the Murray Bridge property (‘the remaining goods’).  The respondent made various email attempts to arrange for Mr Foundas to remove the remaining goods.  No agreement was reached in relation to the remaining goods, and in July 2022 they were moved into storage.

7. By letter dated 24 November 2021, the respondent’s solicitors wrote to Mr and Mrs Foundas enclosing a notice in accordance with s 5 of the Unclaimed Goods Act warning that if the remaining goods were not collected within 42 days of the date of the notice they would become unclaimed goods for the purposes of that Act.  The notice further warned that the respondent (as bailee) was entitled, at the expiry of three months from the date upon which the remaining goods became unclaimed goods, to sell or dispose of the unclaimed goods.

8. Mr and Mrs Foundas did not collect the remaining goods within 42 days of the notice, and they became unclaimed goods. After the expiration of a further three months, the respondent became entitled to sell or dispose of the remaining goods. As the value of the remaining goods exceeded $500, s 6(2) required that the respondent obtain the Court’s authorisation before selling or disposing of the remaining goods.

9. On 21 November 2022, a magistrate made an order authorising the respondent to sell or dispose of any of the remaining goods after 30 January 2023.  At a further hearing on 30 January 2023, the magistrate was persuaded to allow further time for Mr and Mrs Foundas to arrange for the delivery or collection of the remaining goods, and so varied the earlier order to permit the respondent to sell or dispose of any of the remaining goods after 24 February 2023.

   Appeal before the single judge

10. On 1 March 2023, Mr Foundas filed an appeal to a single judge of this Court against the magistrate’s order permitting the respondent to sell or dispose of the remaining goods, and sought an extension of the time within which to appeal.  Mr Foundas was granted a stay pending the hearing of the appeal.

11. The single judge heard the appeal on 1 May 2023.  In her reasons for judgment, the judge recounted the above history and noted that the respondent had made many attempts to obtain an address from Mr and Mrs Foundas in order to deliver the remaining goods to them.  Her Honour also noted the respondent’s claim that it was suffering ongoing prejudice in terms of storage and legal costs.  The judge set out Mr Foundas’ grounds of appeal, and summarised the written and oral submissions made by Mr and Mrs Foundas.

12. In refusing to extend time, and dismissing the appeal, the single judge concluded:

    No submissions made by Mr Foundas disclosed any reasonably arguable ground of appeal pointing to any error in the making of the order such that an extension of time should be granted.  Accordingly, as no error was demonstrated the application for an extension of time was refused, the stay ordered on 6 March 2023 removed and the appeal dismissed.

    Application for permission to appeal

13. As the applicant seeks to appeal a judgment given by the single judge on appeal from a judgment of the Magistrates Court, leave to appeal is required.  In considering whether leave to appeal should be granted, it is appropriate to have regard to whether the impugned orders are attended with sufficient doubt to warrant their consideration on appeal; whether the proposed appeal raises an issue of principle or general importance; and whether leaving those orders to stand would cause any substantial injustice to the applicant.[2]

    [2]     M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA); McDonald v Attorney-General for State of South Australia [2022] SASCA 43 at [21] (Livesey P and Bleby JA).

14. We have had regard to the applicant’s proposed grounds of appeal and written submissions.  They consist largely of complaints by the applicant that he did not abandon the remaining goods, and about his treatment by the respondent.  To the extent that they address at all the order made by the magistrate (and the single judge’s dismissal of his appeal and application for an extension of time), they do not raise any arguable basis for concluding that the magistrate (or single judge) erred.  Certainly they raise no issue of principle or general importance.

15. Further, and in any event, leaving the orders below to stand would not cause the applicant any substantial injustice.  According to the affidavit evidence filed on behalf of the respondent, all of the remaining goods in the possession of the respondent (other than a car and trailer (containing a gate and ladder)) have been returned to the applicant.  Further, the respondent has indicated its preparedness to arrange for the delivery or collection of the car and trailer.

16. The application for leave to appeal must be dismissed.

    Extension of time

17. The applicant requires a short extension of time.  The applicant has provided some explanation for the delay in filing his proposed appeal, which was only a matter of a few days, and so we would grant the extension sought. 

    Orders

    1.We grant the applicant an extension of time, but refuse his application for leave to appeal.