Kelton v Brownrigg (No 2) - [2005] SASC 5

Supreme Court of South Australia
(Civil)
KELTON v BROWNRIGG (No 2)
Reasons for Ruling of The Honourable Justice Perry (ex tempore)
17 January 2005
APPEAL AND NEW TRIAL
The defendant, who was unrepresented, sought an extension of time to appeal to the Full Court against an order that property which she owned as tenant in common with the plaintiff be sold and the net proceeds divided between them - held that there was no reasonable prospect of a successful appeal - extension of time to appeal refused.

KELTON v BROWNRIGG (No 2)
[2005] SASC 5
Civil

PERRY J. (ex tempore) In this matter, the plaintiff, Timothy Shane Kelton, claimed an order for sale of a suburban house property owned by him and the defendant, Jane Kirsten Brownrigg, as tenants in common, and division of the proceeds between them.
The matter came to trial before me in October 2004. I gave judgment on 7 December 2004 (“the trial judgment”).
Effectively I found in favour of the plaintiff. I ordered that the property be sold on a basis which would enable the plaintiff and the defendant each to be paid back the initial contributions which they had made towards the purchase of the property, a loan on the property to be repaid, and that subject to some expenses being paid or adjusted, the balance of the proceeds of sale to be equally divided between the parties.
I ordered that the proceeds of sale be paid into court on the footing that I would then be willing to hear argument as to any further small adjustment which might be needed by way of fine tuning.
I made the order for sale provisionally, in that I provided that within 14 days of the final order, the defendant, Ms Brownrigg, be given an opportunity effectively to buy out the plaintiff’s share of the property for an amount which would enable the same monetary result as if the property were sold to a third party and the proceeds distributed as I have indicated.
She failed to avail herself of that opportunity to buy the plaintiff’s share of the property, with the result that the property now stands to be sold to a purchaser who was already identified at the time the matter came to trial before me, namely John Zsolt Kaplan. He was and remains willing to buy, so I am informed, for a price of $180,000.
Following the handing down of the trial judgment, by a notice for specific directions dated 21 December 2004 (FDN 18), the defendant sought variation of the final judgment and order and a stay of its operation, together with an order extending the time within which to appeal. Her application came on for hearing before me on 22 December 2004. After hearing the parties, I declined to make an order in the terms sought by the defendant.
The defendant then filed a further notice for specific directions dated 24 December 2004 (FDN 20), in which she sought “leave to appeal to the Full Court the decision of Perry J to refuse application to extend leave to appeal”. She further sought specific directions “that the parties are recognised as having equal equity in the property as reflected in the title”.
That application has come before me today.
In the meantime, on 7 January 2005, the plaintiff took out a notice for specific directions (FDN 22), seeking further orders designed to enable the final judgment and order pronounced on 7 December 2004 to be carried into effect. That application was advanced on the footing that, according to affidavit evidence filed in support of the application, the defendant, Ms Brownrigg, in various ways, was impeding the carrying out of the order of the court.
A further notice for specific directions was filed by the defendant, Ms Brownrigg, on 13 January 2005 (FDN 24). That notice sought the dismissal of the plaintiff’s notice for specific directions filed on 7 January 2005. It was accompanied by an affirmation of the defendant, Ms Brownrigg, together with certain exhibits.
Put shortly, the various applications brought by the defendant and the material filed by her in support of them largely come down to an attempt to re-argue the issues which were dealt with at the trial. While she may have had at one stage a right of appeal, she is now out of time, no notice of appeal having yet been filed and no extension having been given.
When I made the order to which I have referred on 22 December 2004, I was of the view that there was no ground disclosed which would justify an extension of the time within which the defendant might lodge an appeal. In particular, there is no reasonable prospect of success of any such appeal. I remain of that view.
Given the breakdown in the relationship between the parties, it is inevitable that the property must be sold and the proceeds divided. The terms of the final judgment and order which I pronounced in the action will enable the proceeds of sale to be paid into court. As I have indicated, I will be prepared in that eventuality to entertain any argument as to finetuning of any adjustments to be made between the parties as to the disposition of the proceeds.
While no doubt it is open to the defendant to apply to the Full Court itself for an extension of time for leave to appeal to the Full Court, or for leave to appeal against my refusal of an extension, no ground has been made out to stay the operation of the final judgment and order. That is subject to the qualification that it is perhaps arguable that should the Full Court give leave to appeal to it, the proceeds of sale which might then be standing in court or some part of those monies, might be held in court to abide the event of any appeal.
Given the fact that the defendant remains unrepresented, and, as has been the case throughout, appears on her own behalf, I have reminded and explained to the defendant her rights as to these matters.
I should say that I am satisfied on the plaintiff’s application and the material filed in support of it, that the defendant is either deliberately obstructing the orderly execution of the judgment and order which I pronounced on 7 December 2004, or is so confused and lacking in understanding as to the steps which must be taken in order to implement it, that unless some other directions are given, it will not be capable of being carried out in accordance with the findings which I made.
It follows that it is necessary for me to make further orders and directions so that the trial judgment may be carried into effect. I will do so in a way which will effectively dispense with the need for Ms Brownrigg to participate.
I will exercise the powers conferred by the Real Property Act to direct the Registrar-General to register a transfer of the land signed by the plaintiff only, and notwithstanding that the duplicate certificate of title, which is held by the defendant, is not produced.
On the question of the duplicate certificate of title, I have this morning raised with the defendant the matter of production of the duplicate certificate of title, and she has indicated that she is willing to surrender it to the court but not to the plaintiff or his representatives.
I will therefore make an order accordingly that she deliver it to the court within a time frame which I have discussed with her.
The orders which I make are as follows:
1.That the duplicate certificate of title be delivered by the defendant to the court no later than 12.00 pm on Wednesday 19 January 2005. I have directed the defendant to take the duplicate certificate of title to the registry and ask them for assistance in having it produced into the custody of my associate or personal assistant.
I have intimated to the defendant that I will hold the duplicate certificate of title in a safe place until settlement of any sale.
2.The defendant’s application (FDN 18) for an extension of time to appeal and for a stay of proceedings is dismissed.
3.The defendant’s application for leave to appeal to the Full Court (FDN 20) is dismissed.
4.The defendant’s application (FDN 24) which seeks an order that the plaintiff’s application for specific directions be refused, is dismissed.
5.On the plaintiff’s application (FDN 22), I make an order in terms of the draft order circulated to the parties, this day settled by me:
“MINUTES OF ORDER
Judicial officer:  The Honourable Justice Perry
Date of summons:  30 June 2004
Notice for specific directions:           7 January 2005
Application made by:  Plaintiff
Date of hearing:  17 January 2005
Date of order:  17 January 2005
Appearances:  Mr J. Russell Jamison, counsel for the plaintiff
  Defendant in person
Pursuant to section 64 of the Real Property Act 1886 and all other enabling powers, THE COURT ORDERS:
1.     That the plaintiff, to the exclusion of the defendant, be at liberty to proceed with the sale of the whole of the land comprising and described in Certificate of Title Register Book Volume 5406 Folio 351 (“the said land”) to John Zsolt Kaplan, in accordance with the judgment and order dated 7 December 2004.
2.     That the said Jane Kirsten Brownrigg permit access to the premises on the said land to the said John Zsolt Kaplan and any other person authorised by him to do so for the purpose of obtaining a building inspection report, such access:
(a)to be given on no less than 12 hours notice; and
(b)to take place between the hours of 8.00 am and 8.00 pm on any day.
3.     That the Registrar-General shall register a transfer of the whole of the said land, including the interest of the defendant Jane Kirsten Brownrigg in the said land, to John Zsolt Kaplan upon a Memorandum of Transfer otherwise in the appropriate form being lodged for registration, notwithstanding:
(a)that the Memorandum of Transfer is executed and signed only by the plaintiff Timothy Shane Kelton and accepted by the purchaser, and is not executed or signed by the said Jane Kirsten Brownrigg;
(b)that the relevant duplicate certificate of title to the said land has not been produced to the Registrar-General.
4.     Except to the extent provided in this order, the said judgment and order dated 7 December 2004 shall remain in full force and effect.
5.     That a copy of this order be registered on the said title.”
6.I adjourn the matter generally to a date to be fixed, with liberty for either party to apply on short notice for such further or other order or direction in the premises as they may be advised.
(To the defendant) Ms Brownrigg, in order to assist you, I have explained that you are entitled to apply to three judges, that is, the Full Court, as there is nothing further I can do to help you now, if you want to appeal or get leave to appeal against any of the orders that I have made. All right?
MS BROWNRIGG: Yes.