Haughton v Chang

Case [2021] SASCA 90

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HAUGHTON v CHANG

[2021] SASCA 90

Judgment of the Court of Appeal  

(The Honourable Justice Doyle and the Honourable Justice Bleby)

2 September 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Mr Haughton leased commercial land owned by the respondents pursuant to a “Fixed Term Land Lease Agreement” entered in October 2013.  He was late in paying all invoices issued to him by the respondents under this agreement and, on 7 July 2015, the respondents terminated the lease.

Mr Haughton issued proceedings alleging unlawful termination and seeking reinstatement of the lease.  The respondents filed a counter-claim for damages for breach of contract. 

At a directions hearing, Mr Haughton appeared to raise some form of constitutional challenge to the Court’s jurisdiction.  He was advised that, to raise this issue, he ought either to bring an interlocutory application or amend his pleadings.  He was given leave to do so, but did not file any such application nor amend his pleadings.

At trial, Mr Haughton sought to challenge the Court’s jurisdiction.  He did not explain why he had not raised the issue in accordance with the grant of leave given to him.  Despite the trial Judge’s attempts to have him run his case, he refused to call evidence, declined to discontinue his action, and purported to serve criminal proceedings on the Court.  The Judge dismissed his claim in an ex tempore ruling.

Mr Haughton attended the hearing of the counter-claim.  He gave evidence in support of his defence, tendered several documents, and cross-examined Mr Chang.  The trial Judge delivered her reasons on 24 July 2020, and entered judgment for the respondents in the sum of $364,988 (including interest).

Mr Haughton filed a notice of appeal on 10 June 2021, some 10 months out of time.  He applies for an extension of time within which to appeal, citing financial difficulties and his poor health as explanations for his delay.  By his notice of appeal, he contends that he was denied procedural fairness.  He also broadly contends that the Judge erred in fact and in law, seemingly on the bases that Mr Chang committed perjury, and that the lease had been frustrated.

Held, per Doyle JA (Bleby JA agreeing), refusing the extension of time and dismissing the appeal:

1.      There is little in the affidavit evidence filed by Mr Haughton to support the asserted causal role in his delay of his health or financial difficulties. 

2.      Mr Haughton was given a reasonable opportunity to present his case and meet the respondents’ case, and no error has otherwise been identified in the reasons of the trial Judge. 

3.      In light of the significant length of the delay, the inadequate explanation for that delay, and the poor prospects of success for Mr Haughton on appeal, this is not an appropriate case for the Court to exercise its discretion to grant an extension of time.

Uniform Civil Rules 2020 (SA) r…

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Haughton v Chang [2021] SASCA 90
Case
[2021] SASCA 90
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CaseChat Overview and Summary

This matter concerned an appeal by Mr Haughton against the respondents, who were the owners of commercial land leased by Mr Haughton. The dispute arose from the termination of a Fixed Term Land Lease Agreement in October 2013, which the respondents initiated on 7 July 2015 due to Mr Haughton's persistent late payment of invoices. Mr Haughton subsequently paid the outstanding amount on 30 July 2015 and initiated proceedings in the Magistrates Court, alleging unlawful termination and seeking reinstatement of the lease. The case was transferred to the District Court, and after a lengthy procedural history, Mr Haughton sought an adjournment of the trial, which was granted. The appeal to the Full Court of the Supreme Court of South Australia concerned Mr Haughton's application for an extension of time to appeal.

The primary legal issue before the Full Court was whether to grant Mr Haughton an extension of time to file his appeal. This required the Court to consider the adequacy of his explanation for the significant delay in lodging the appeal, the merits of his proposed grounds of appeal, and whether it was in the interests of justice to permit the appeal to proceed out of time. The Court also had to assess whether any errors were made by the trial judge in the original proceedings.

The Court, comprising Doyle JA and Bleby JA, refused Mr Haughton's application for an extension of time. Doyle JA, in his reasons, found that the affidavit evidence provided by Mr Haughton offered little support for his asserted health and financial difficulties as the cause of his delay. Furthermore, the Court determined that Mr Haughton had been afforded a reasonable opportunity to present his case and that no identifiable errors had been made by the trial judge. In light of the substantial delay, the insufficient explanation for that delay, and the poor prospects of success on appeal, the Court concluded that it was not appropriate to exercise its discretion to grant an extension of time.

Consequently, the Court refused Mr Haughton's application for an extension of time within which to appeal and dismissed the appeal. The respondents' interlocutory application was also dismissed as redundant in light of the orders made on Mr Haughton's application.

Orders

Orders of the court

Held, per Doyle JA (Bleby JA agreeing), refusing the extension of time and dismissing the appeal:

1. There is little in the affidavit evidence filed by Mr Haughton to support the asserted causal role in his delay of his health or financial difficulties.

2. Mr Haughton was given a reasonable opportunity to present his case and meet the respondents’ case, and no error has otherwise been identified in the reasons of the trial Judge.

3. In light of the significant length of the delay, the inadequate explanation for that delay, and the poor prospects of success for Mr Haughton on appeal, this is not an appropriate case for the Court to exercise its discretion to grant an extension of time.

Background

Background to the litigation

For the reasons that follow, I would refuse Mr Haughton’s application for an extension of time and dismiss his appeal. Background The respondents are husband and wife, and own commercial land in Lonsdale (the Property). Mr Haughton is the sole shareholder and director of a company that, at the time of the relevant events, owned land adjacent to the Property. The proceedings the subject of this appeal arose out of a dispute regarding a commercial leasing arrangement between Mr Haughton and the respondents in respect of the Property. Mr Haughton was interested in leasing the Property for the purpose of “establishing and developing landfill and green waste treatment”, and approached the respondents in this regard in early to mid-2013. He produced a document entitled “Fixed Term Land Lease Agreement” (the Agreement), which was ultimately signed by the parties on 22 October 2013. Shortly after, and as contemplated by the Agreement, Mr Haughton paid an initial amount to the respondents, took possession of the Property, and began depositing landfill. The Agreement provided that subsequent payments, which encompassed both rent and payment for income generated through Mr Haughton’s enterprise, were to be made within seven days of the presentation of invoices by the respondents to Mr Haughton. Relevantly, the termination provisions in the Agreement entitled either party to terminate the lease upon certain defined default events, including a failure by the lessor to “pay the lease fee and allocated shares of income streams when due monthly”. As at April 2015, Mr Haughton had been late in paying the invoices issued to him by the respondents. On 15 April, the respondents issued another invoice and, despite payment falling due on 23 April, it remained unpaid as at 7 July 2015. As a consequence of Mr Haughton’s failure to pay this invoice, the respondents instructed their solicitors to terminate the Agreement, and serve a notice of re-entry. The locks on the premises were changed, and the respondents resumed possession. Mr Haughton subsequently paid the outstanding invoice on 30 July 2015. On 22 July 2015, Mr Haughton issued proceedings in the Magistrates Court, alleging that the respondents had unlawfully terminated the Agreement, and seeking orders for the reinstatement of the lease. The respondents filed a defence, and a counter-claim for damages for breach of contract, on 31 August 2015. The proceedings were transferred to the District Court on Mr Haughton’s application on 18 October 2016. The matter progressed slowly through various interlocutory procedures, including the filing of amended pleadings by both parties. While the matter was listed for trial in mid-2018, the trial was vacated to enable the parties to continue negotiations. These negotiations were ultimately unsuccessful, and the trial was relisted to commence on 18 October 2019. At a directions hearing on 1 October 2019, Mr Haughton applied for an adjournment of the trial on the basis that he was not ready to proceed. The adjournment was granted, despite opposition from the respondents, and the trial was relisted for 1 June 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of my conclusion on the question of whether to grant an extension of time, I make these observations for completeness and without expressing a concluded view on the issues raised by Mr Haughton’s bankruptcy.Conclusion For the reasons I have given, I would refuse Mr Haughton’s application for an extension of time within which to appeal. I would dismiss the appeal. I would also dismiss the respondents’ interlocutory application, but, as I have explained, only on the ground that it is redundant in light of the orders I propose to make on Mr Haughton’s application. BLEBY JA: I would refuse the application for an extension of time within which to appeal, and dismiss the appeal, for the reasons given by Doyle JA. I would consequently dismiss the respondents’ interlocutory application on the basis that it is redundant.

Ratio Decidendi

Legal Principle Established

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