Mills v Rothmore Farms Pty Ltd (in Liquidation) No. Scciv-99-1032
[2002] SASC 134
•15 April 2002
MILLS V ROTHMORE FARMS PTY LTD (IN LIQUIDATION)
[2002] SASC 134
LANDER J. These proceedings were originally commenced in the Federal Court. Following upon the decision of the High Court in Re Wakim; Ex parte McNally and Others (1999) 198 CLR 511 and the legislation which followed that decision, the matter proceeded in this Court.
The sixth defendant was represented by the same solicitors and counsel in the Federal Court. An order was made against him in that court requiring him, as well as the other defendants, to pay the plaintiff’s costs. No appeal was brought from that decision. I am advised by counsel who now appears for the sixth defendant that that order should have been appealed.
The matter proceeded in this Court as an account and inquiry before a Master of this Court. Prior to the account and inquiry commencing, the plaintiff’s solicitors wrote to the sixth defendant’s solicitors in the following terms:
“We are instructed that our client is not presently aware of any evidence to suggest that Robert Mills, the sixth defendant, has received any assets or income of the Jill Cooper Family Trust in the course of his acting as a director of Belgravia Pty Ltd. However, we note that it is possible that other defendants to the action who participate in the inquiry and account might seek to lead evidence at the hearing on 21 September 2001 that Robert Mills did receive assets or income of the Jill Cooper Family Trust. For example, our client has leave to cross-examine Richard Cooper at the hearing on 21 September 2001, and it is possible that Richard Cooper may make assertions that suggest that Robert Mills has received assets or income of the Jill Cooper Family Trust on the inquiry and account. If that occurred, our client may seek orders as against Robert Mills. However, if no evidence is led by the other defendants, or no other evidence is provided to our client, at or prior to the hearing on 21 September 2001, to suggest that Robert Mills has received assets or income of the Jill Cooper Family Trust, our client will not seek orders against him.”
No evidence was led at the account and inquiry by any party to the effect that the sixth defendant had ever received assets or income of the trust.
At the hearing on 21 September 2001, the letter to which I have referred was tendered to the court and counsel for the sixth defendant was then given leave to withdraw. Subsequently, written submissions were made by the plaintiff, in which the plaintiff sought an order for costs of the inquiry and account against all defendants including the sixth defendant.
Further, a telephone conversation was had between the solicitors for the sixth defendant and the plaintiff in which the sixth defendant’s solicitors were advised that the plaintiff would be seeking an order for costs against the sixth defendant.
As a result of the written submissions and that telephone conversation, counsel for the sixth defendant attended at the hearing of final submissions on 2 November 2001 and made submissions to the Master against any order for costs against the sixth defendant. After those submissions were made, counsel was given leave to withdraw.
The Master made an order for costs against all defendants. He gave no reasons for why he rejected the sixth defendant’s submissions nor why, when no other orders were made against the sixth defendant, an order for costs was made against him.
On 16 November 2001, the sixth defendant applied for leave to appeal from the Master’s decision. That application came before the Master, who was unable to hear it, and the matter was referred to another Master.
On 16 January 2002, a Master made the following orders:
“I do not believe that the sixth defendant requires leave to appeal, but, if I’m wrong, then I’ll grant it. I further grant an extension of time for 14 days within which to bring the appeal.”
In my opinion, no leave to appeal was required. Appeals from masters are governed by r 106 and as this was only for an order for costs no leave was required.
This appeal is not governed by s 50(1)(2)(b) of the Supreme Court Act1935 (SA) which, in my opinion, only refers to orders of a judge. Orders of a master are dealt with separately under s 50(2). No leave was required and therefore that part of the Master’s order ought not to have been made.
In my opinion, the Master was wrong to extend time within which to bring the appeal, because the application before the Master was made ex parte. Such an order can only be made on an inter partes application.
A notice of appeal was filed on 30 January 2002, but not served until 19 March 2002. The notice of appeal claims that it was filed pursuant to leave given by the Master.
After the notice of appeal was served an application was made by the plaintiff to have the appeal dismissed as incompetent and in the alternative to have the leave to appeal granted by the Master rescinded.
In response to that application, the sixth defendant applied for orders in the following terms:
“1 That the respondent’s application be dismissed;
2That the time for service of the notice of appeal be extended to 19 March 2002;
3 Such further or other order as the court sees fit.”
Paragraph 1 of that application, in my opinion, is unnecessary. Paragraph 2 is necessary and will need to be decided.
The matter came on for hearing before me on 5 April. At that time, I indicated to the parties that I did not believe that leave to appeal was required. I also indicated that I thought the Master was wrong to have extended time for the institution of the appeal without allowing the plaintiff to be heard. I indicated that I thought the notice of appeal, in its form, was wrong and required correction.
The matter was adjourned until today. On Friday, 12 April 2002, an affidavit was filed by the sixth defendant’s solicitor in which he seeks orders amending the notice of appeal and orders dismissing the application to dismiss the notice of appeal as incompetent.
The sixth defendant should have filed his notice of appeal within 14 days of the Master’s decision. Instead, the application for leave to appeal was made. The appeal was, in my opinion, as of right.
The sixth defendant has, in his notice of appeal, indicated that he intends to appeal to the Full Court. Whether this is an appeal which ought to go to the Full Court or to a single judge depends upon the construction of r 106.05. If an order for costs is “a final finding, decision, direction, award or judgment” then the appeal lies to the Full Court.
If, on the other hand, it is an interlocutory decision, then the appeal lies to a single judge.
I need not decide whether an order for costs is a final decision for the purpose of r 106.05.
The sixth defendant’s failure to appeal within time is explained by the incorrect assumption that leave to appeal was required. The application for leave to appeal was made within 14 days.
The plaintiff asks me to refuse the application to amend and to dismiss the notice of appeal as incompetent.
If I allow the amendments the appeal will, subject to the choice of courts, be competent.
In my opinion, it would be appropriate to allow the sixth defendant to amend his notice of appeal in the form suggested. I therefore give leave to the appellant to amend his notice of appeal in accordance with the proposed amended notice of appeal, being Exhibit JBG3 referred to in the affidavit of John Brendon Golden.
I think I should set aside the orders made by Master Kelly on 16 January 2002. I do not believe that the Master should have given leave. Nor do I believe that he should have extended the time within which to appeal without hearing the plaintiff. I therefore, set aside the orders made on 16 January 2002.