PATELIS v SANDER - [2020] SADC 2

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PATELIS v SANDER
[2020] SADC 2
Judgment of Her Honour Judge Bochner
16 January 2020
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
Appeal from a Master - application to strike out a paragraph in the defence - whether the Master erred in declining to strike out paragraph 27 of the second defence.
Held
1. Appeal allowed.
2. Paragraph 27 of the second defence is struck out.
Real Property Act (1886) (SA) s 69, referred to.
Arcadi v Whittem (1992) 59 SASR 515; Public Trustee v Paradiso (1995) 64 SASR 387, considered.

PATELIS v SANDER
[2020] SADC 2

The appellant has appealed a decision of a District Court Master in relation her application to strike out various paragraphs of the respondent’s second defence. The appellant sought to strike out four paragraphs of the defence and was unsuccessful in relation to each paragraph; she now appeals only in relation to one of those paragraphs.
Background
The facts of this matter are set out in some detail in the learned Master’s decision[1] (“the decision”), and I will not repeat them here, save as is necessary to make sense of this judgment.
[1] Decision No 25 of 2019.
In short, the appellant was a victim of forgery, which led to a mortgage being registered over two parcels of land of which she was a joint tenant. This much is not in dispute, and I understand that the perpetrators of the fraud have been tried and convicted in the District Court of South Australia. It is also not in dispute that the appellant first became aware of the forgery when she was served with a notice of default by the lender. The appellant was unable to raise the outstanding moneys and elected to sell the properties which were the subject of the mortgages, to repay the lender, rather than to have the properties repossessed by the lender and subject to mortgagee sales. The properties were sold, and the loans were repaid.
I further note that there is no dispute that the lender was not involved in, or otherwise aware of the forgery and was an innocent party.
The appellant then issued this proceeding against the solicitor who gave advice to the perpetrators of the fraud. She alleges that he failed to take reasonable or proper steps to verify the identity of the person signing the documents, thus allowing the forgery of her signature to occur. The causes of action on which she relies are breach of fiduciary duty, negligence and misleading or deceptive conduct.
The essence of the appellant’s case is that, on registration, the lender gained an indefeasible title in the mortgages, as an innocent third party. At paragraph 44 of the statement of claim, she pleads:
By reason of the operation of section 69 of the Real Property Act 1886 (SA), the Memorandum of Mortgage could not be avoided as against Nationwide on the grounds that the plaintiff’s signature in the Memorandum…

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 PATELIS v SANDER

Details

AGLC: PATELIS v SANDER [2020] SADC 2
Case: [2020] SADC 2
Decision Date: 16 January 2020

CaseChat Overview and Summary

The matter under consideration is an appeal against a decision made by a Master, pertaining to an application to strike out a specific paragraph in the defence. The parties involved are Patelis, the appellant, and Sander, the respondent. The dispute arises from the second defence, specifically paragraph 27, which the Master declined to strike out. The appeal was heard in the South Australian District Court, where the appellant sought to challenge the Master's decision.

The legal issue at the core of this case revolves around the propriety of the Master's decision to decline the application to strike out paragraph 27 of the second defence. The appellant argued that the paragraph in question was irrelevant and misleading, and therefore, should have been struck out. The respondent, on the other hand, contended that the paragraph was pertinent and necessary for a full understanding of the defence, and as such, should remain intact. The court was required to determine whether the Master's decision was correct, and if not, whether the paragraph should be struck out.

In its reasoning, the court examined the relevant provisions of the law that govern the striking out of defences. It considered the criteria for striking out a defence, including relevance and necessity. The court found that the Master had not erred in declining to strike out the paragraph in question. The court held that the paragraph was relevant and necessary to the respondent's defence, and therefore, the Master's decision was correct. The appeal was dismissed, and the paragraph in question was allowed to remain in the second defence.

The final orders of the court were that the appeal be dismissed, and the decision of the Master to decline the application to strike out paragraph 27 of the second defence be upheld. The paragraph in question was allowed to remain in the second defence, and no further action was required by either party.

Orders