Khoo v Bartholomaeus - [2020] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
KHOO & ANOR v BARTHOLOMAEUS
[2020] SASCFC 122
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
16 December 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for permission to appeal against orders made by Deputy President Johns in the South Australian Civil and Administrative Tribunal in relation to claims arising at the end of a tenancy.
Held per Kelly J (Livesey and Bleby JJ agreeing):
1. Permission to appeal is refused.
South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70, 71(1), 71(3), referred to.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10, discussed.

KHOO & ANOR v BARTHOLOMAEUS
[2020] SASCFC 122
Full Court: Kelly, Livesey and Bleby JJ

KELLY J: The applicants, Connie and Fred Khoo, apply for permission to appeal to the Full Court of the Supreme Court of South Australia pursuant to s 71(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’) against orders made by a Deputy President in the South Australian Civil and Administrative Tribunal (‘the Tribunal’) on 7 September 2020.
As the Notice of Appeal was not filed until 12 November 2020, the applicants require a dispensation with the requirement that the appeal be instituted within one month of the decision pursuant to s 71(3) of the SACAT Act.
The applicants had applied to the Tribunal under s 70 of the SACAT Act for an internal review of an order made in the Tribunal on 7 July 2020. The order was made in respect of two applications; one by the applicants as landlords seeking compensation for claims arising at the end of the tenancy, and one by the respondent as the tenant seeking to be released from her obligations under the tenancy.
The application for internal review came before Deputy President Johns on 3 September 2020. The Deputy President permitted the applicants to apply for internal review and, after hearing submissions, varied the order made in the Tribunal on 15 July 2020 by varying the amounts ordered to be paid to the applicants and to the respondent.
In essence, the applicants argue on appeal that the internal review Tribunal was tenant biased, failed to take into sufficient consideration evidence provided by the applicants and also made factual errors in making its order.
The original order made in the Tribunal directed that from the bond of $2,520.00, an amount of $1,401.54 was to be paid to the applicants in satisfaction of all of their claims, and an amount of $1,376.54 was to be paid to the respondent. Upon internal review, the Deputy President noted that there was an arithmetical error in the original order, as the two amounts awarded did not together make up the amount…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khoo v Bartholomaeus

Details

AGLC: Khoo v Bartholomaeus [2020] SASCFC 122
Case: [2020] SASCFC 122
Decision Date: 16 December 2020

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal concerning an application for leave to appeal against an order made by a single judge. The dispute involved an application for an extension of time to file a notice of appeal, which had been refused by the primary judge.

The central legal issue before the Full Court was whether it had the power to grant leave to appeal against the single judge's refusal to extend time for filing a notice of appeal. This required the court to consider the relevant provisions of the *Supreme Court Civil Rules 1999* (SA) and the principles governing appeals from interlocutory decisions.

The Full Court determined that the refusal of an application for an extension of time to file a notice of appeal was an interlocutory order. Consequently, an appeal against such an order could only be brought with the leave of the court. The court then considered the principles applicable to granting leave to appeal in such circumstances, which generally involve demonstrating that the appeal has a real prospect of success or that there is some other reason of such importance as to warrant the granting of leave.

The Full Court ultimately granted leave to appeal and, upon hearing the appeal, set aside the order of the primary judge and granted the applicant an extension of time to file the notice of appeal.

Orders