Johnson v Synnex Aust P/L; Johnson v Leader Computers P/L

[2016] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

JOHNSON v SYNNEX AUST P/L; JOHNSON v LEADER COMPUTERS P/L

[2016] SASCFC 105

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)

16 September 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM DISTRICT COURT

Applications for permission to appeal to the Full Court from a decision of an Auxiliary Judge of the District Court dismissing appeal against a decision of a District Court Master – the Master had made orders regarding the payment out of monies held in the Suitors Fund pursuant to a sale order – the moneys held were the net proceeds of the applicant’s home previously held as a joint tenant with the first defendant who had charged his interest in the property in favour of Synnex Australia Pty Ltd and Leader Computers Pty Ltd – the Master held that the costs payable to Synnex Australia Pty Ltd pursuant to an order of the trial Judge be paid from that portion of the monies held on behalf of the applicant in the Suitors Fund – the Auxiliary Judge held that the Master’s order was not a determination by the Master but the recording of an agreement reached by the applicant during a hearing before the Master and that in this matter a creditor is not paid by the sale of an asset subject to a charge but only when the money is paid out of Court to the creditor and a creditor with different remedies for the enforcement of a debt may exercise them “simultaneously or contemporaneously or successively or not at all” – the applicant asserts the Auxiliary Judge’s and Master’s judgments are not in conformity – whether the Auxiliary Judge erred in finding that Synnex Australia Pty Ltd was entitled to elect as between which resource (the proceeds of sale of the first defendant’s home or the applicant personally) it would look to for its costs.

Held per the Court:  Permission to appeal granted.

Supreme Court Civil Rules 2006 (SA) r 288(1)(iii), referred to.

JOHNSON v SYNNEX AUST P/L; JOHNSON v LEADER COMPUTERS P/L
[2016] SASCFC 105

Full Court:  Kourakis CJ, Bampton and Doyle JJ

1. THE COURT:      These are applications for permission to appeal to the Full Court from a decision of an Auxiliary Judge of the District Court dismissing appeals against a decision of a District Court Master.[1]  Pursuant to r 288(1)(iii) of the Supreme Court Civil Rules 2006 (SA), the appeal to the Full Court lies by permission of the Court.

   [1]    Johnson v Leader; Johnson v Synnex [2016] SADC 58.

2. The proposed appeal raises arguable questions of law regarding equitable priorities and the enforcement of equitable securities.  The proposed appeal does not depend on questions of fact.  The proposed appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration by the Full Court.

3. Permission to appeal is granted.