Landmark Operations Ltd v J Tiver Nominees Pty Ltd

[2009] SASC 273

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

LANDMARK OPERATIONS LTD v J TIVER NOMINEES PTY LTD & ORS

[2009] SASC 273

Reasons for the Orders of The Honourable Justice Kelly

11 August 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

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

Application by the plaintiff to summarily dismiss appeal - consideration of procedure and powers under r 290 of the Supreme Court Civil Rules 2006 (SA) - application by first and third defendants for an extension of time in which to appeal.

HELD: Application for summary dismissal granted - application for extension of time to appeal refused.

Bankruptcy Act 1966 (Cth) s 60(3); Supreme Court Civil Rules 2006 (SA) r 290(1), referred to.
Mayne Market Pty Ltd v Temple [1999] SASC 271; Purins v Alpine Constructions Pty Ltd [2008] SASC 11, applied.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185, discussed.

LANDMARK OPERATIONS LTD v J TIVER NOMINEES PTY LTD & ORS
[2009] SASC 273

Civil

1. KELLY J:             On 11 August 2009 I made orders in respect of two applications before me and said I would deliver reasons at a later date.  The following are my reasons.

2. Before me were two applications.  The first was an application by Landmark Operations Ltd (the plaintiff in one application and the respondent in the other) for an application for summary dismissal of the respondents’ appeal. 

3. The second was an application by the first and third defendants, J Tiver Nominees Pty Ltd and Phyllis Blanche Tiver, for an extension of time in which to appeal.  On 11 August 2009 I made orders that the respondents’ supplementary notice of appeal filed on 17 April 2009 be summarily dismissed.  Consequent on that order I also ordered that the first and third respondents’ application for an extension of time within which to set down the appeal be refused. 

4. The plaintiff’s application was made following and in light of the decision by the Full Court to refuse permission to the defendants to appeal against a decision of another Judge of this Court who refused to grant a stay of execution of a judgment entered against the defendants on 26 November 2008.  In refusing an application for a stay of execution the single Judge concluded that the respondents had insufficient prospects of success in relation to the grounds of appeal disclosed by the supplementary notice of 17 April 2009. 

5. The judgment of the Full Court in Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185 (Bleby, Vanstone and White JJ) sets out the history of the various applications made by the respondents in this appeal and I do not propose to repeat that history here. Suffice it to say that I note the comments of Bleby J (with whom Vanstone and White JJ agreed) who said in respect of the supplementary notice of appeal at [36]:

   In this case the present appellants now seek to mount a case against the plaintiff which was neither pleaded nor the subject of any evidence at the trial.  I agree with David J that the supplementary notice of appeal does not have sufficient prospects [of] success as to warrant the granting of a stay of execution pending the appeal.

6. There was a question as to whether the supplementary notice of appeal filed on 17 April 2009 was some form of amendment to the original notice of appeal filed by the respondents on 10 December 2008 or whether it is, in effect, a fresh appeal commenced out of time.  I agree with the submissions made by Mr Hoffman QC at the hearing of this application that the question does not need to be resolved as, on any view of the matter, the underlying grounds of appeal are manifestly hopeless and bound to fail for the reasons expressed by Bleby J in Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors.

7. Since the disposition of that appeal the fourth and fifth respondents, James Hamilton Tiver and Benjamin John Tiver, were declared bankrupt on 8 July 2009. Their bankruptcies followed the declaration of bankruptcy in respect of the second and sixth respondents, John Darcy Tiver and Margaret Susan Tiver, on 6 April 2009. Their trustee, Ms Petrie, has advised under the provisions of s 60(3) of the Bankruptcy Act 1966 (Cth) that the trustee does not intend to pursue and is deemed to have abandoned the appeal as far as those respondents are concerned. The first respondent effectively abandoned the appeal. On the hearing of this application that left only the third respondent, Mrs Phyllis Blanche Tiver, in respect of whom the second respondent holds an enduring Power of Attorney. On the hearing of this application, counsel representing Mrs Tiver confirmed that he had not received any instructions in relation to the current applications.

8. In an application for summary dismissal, the onus is on the applicant to prove that it is obvious the appeal cannot succeed.  Under the provisions of r 290(1) of the Supreme Court Civil Rules 2006 (SA) this Court is invested with the power to summarily dismiss an appeal if it is obvious that it cannot succeed.  As a general rule, a Judge would not exercise the power unless the appeal is so defective in form and substance that it must be struck out either as failing to invoke the jurisdiction of the Full Court or clearly is an abuse of process: Mayne Market Pty Ltd v Temple [1999] SASC 271.

9. In Purins v Alpine Constructions Pty Ltd [2008] SASC 11 Debelle J expressed the view that this court will also exercise that power where it is clear beyond argument that the appeal must fail.

10. In my view this is one such case and plainly so.  For these reasons I made orders on 11 August 2009 summarily dismissing the appeal by way of supplementary notice of appeal filed on 17 April 2009 and refusing the third respondent’s (Phyllis Blanche Tiver) application for an extension of time within which to set down the appeal.