Foundas v Heritage and Peoples Choice Limited

This matter concerned an application by Mr Foundas for an extension of time and leave to appeal to the Full Court of the Supreme Court of South Australia against an order made by a magistrate. The dispute arose from the respondent, Heritage and People’s Choice Limited, seeking to enforce a Supreme Court order for possession of a residential property previously mortgaged by Mr Foundas and his wife. Following the execution of the warrant of possession, certain goods and personal items were left at the property. The respondent attempted to arrange for the removal of these items, and when this was unsuccessful, they were placed in storage. The respondent subsequently issued a notice under the Unclaimed Goods Act, warning that the goods would be treated as unclaimed if not collected within 42 days.

The legal issues before the court were whether an extension of time should be granted for Mr Foundas to appeal the magistrate's order authorising the sale or disposal of the unclaimed goods, and whether leave to appeal should be granted. The magistrate had initially authorised the sale or disposal of the goods after 30 January 2023, but later varied this order to permit the respondent to sell or dispose of the goods after 24 February 2023, allowing further time for Mr Foundas to arrange for their collection. Mr Foundas filed his appeal against this latter order on 1 March 2023.

The court determined that while an extension of time for the appeal was appropriate, leave to appeal should be refused. The reasoning for refusing leave centred on the fact that the appeal was brought against an order that had already been superseded by a subsequent, more favourable order for Mr Foundas, which extended the time for him to collect his goods. The court noted that the appeal was effectively against an order that was no longer in effect, rendering the appeal academic. The court also considered the applicant's delay in bringing the appeal and the lack of a substantial point of law to be argued.

Consequently, the Full Court granted the extension of time within which to appeal but refused leave to appeal. The appeal was therefore dismissed.