Peck v Peck - [2011] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PECK v PECK & ORS
[2011] SASCFC 63
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice David)
1 July 2011
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - EXCEPTIONS TO INDEFEASIBILITY - FRAUD OR FORGERY - AGAINST REGISTERED PROPRIETOR
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Appeal against decision of a single Judge of Supreme Court – transfer of property from second respondent to appellant and her husband – transfer lodged at LTO – second respondent unaware of transfer and had not signed any documents relating to it – finding by Trial Judge that transfer had been effected by the fraud of the appellant and was therefore void.
Notice of Appeal filed by appellant acting in person – no appearance by appellant at hearing of appeal – advice received that prior to hearing appellant deported from Australia – no immediate prospect of return to Australia – whether appeal should be adjourned to provide appellant with opportunity to make submissions – grounds of appeal incomplete and incomprehensible – failure to comply with SCR 282(2) – power of Court to dismiss appeal as a result of appellant’s failure to appear – whether appeal should be dismissed pursuant to SCR 12(2) for procedural irregularities – whether Court should summarily dismiss appeal pursuant to SCR 295(1)(h).
Held: There was ample evidence at trial to support the findings made by the Trial Judge – that evidence not contradicted by any evidence of the appellant who did not attend trial – appeal has no merit and should be dismissed – in that circumstance unnecessary for Court to invoke SCR 12(2) or SCR 295(1)(h) although if it had been necessary to do so grounds to dismiss under one or other of those rules established – application for adjournment refused – appeal dismissed.
Real Property Act 1886 (SA) s 64; Supreme Court Civil Rules 2006 (SA) SCR 295(1)(h), 12(2), 282(2), 234, 28 ; Supreme Court Act 1935 (SA) s 13, referred to.
Peck & Anor v Peck & Anor [2010] SASC; Edwards v Patterson (1987) 47 SASR 63, discussed.

PECK v PECK & ORS
[2011] SASCFC 63
Full Court: Nyland, White and David JJ

THE COURT: This appeal was commenced by Monika Peck, who was the first defendant in an action instituted by the Public Trustee as the first plaintiff on behalf of Andrew Peck. On 16 March 2007 the Public Trustee was appointed by the Guardianship Board as the Administrator of Andrew Peck’s estate. The evidence before the Guardianship Board was that Andrew Peck had been diagnosed as suffering from “severe and disabling chronic schizoaffective disorder”.[1] Andrew had received compensation as a result of injuries received playing rugby and there was a concern by his family and the treating team about the protection of his assets.[2]
[1] Statement of Reasons of Guardianship Board in relation to Andrew Peck dated 16 March 2007…

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 Peck v Peck

Details

AGLC: Peck v Peck [2011] SASCFC 63
Case: [2011] SASCFC 63
Decision Date: 1 July 2011

CaseChat Overview and Summary

The appeal concerned a dispute over the transfer of Torrens title property from the second respondent to the appellant and her husband. The second respondent claimed to be unaware of the transfer and had not signed any relevant documents. The Trial Judge had found that the transfer was effected by the fraud of the appellant and was therefore void.

The legal issues before the appellate court were whether the appeal should be adjourned to allow the appellant, who was absent from the hearing due to deportation, to make submissions, and whether the appeal should be dismissed due to the appellant's failure to appear, incomplete grounds of appeal, and non-compliance with court rules. The court also considered whether to summarily dismiss the appeal.

The court held that there was sufficient evidence at trial to support the Trial Judge's findings, which were not challenged by the appellant. Given the lack of merit in the appeal and the appellant's absence, the court found it unnecessary to rely on specific rules regarding dismissal for procedural irregularities or failure to appear, although grounds for such dismissal were established. The application for an adjournment was refused, and the appeal was dismissed.

Orders