Roberts v Eckert

Case [2020] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

ROBERTS v ECKERT

[2020] SASC 27

Judgment of The Honourable Justice Nicholson

26 February 2020

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS

PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS

This Court dismissed an appeal by Mr Eckert, the defendant, from a trial judgment by a single judge of this Court delivered in favour of Mr Roberts, the plaintiff. A fundamental matter in issue between the parties was the question of the equitable ownership of certain farming land, which was determined at trial and on appeal in favour of the plaintiff.

The plaintiff and defendant have each made an interlocutory application to this Court following delivery of the appeal judgment. The defendant’s application seeks orders designed to address the consequences arising as a result of the defendant’s continued occupation of the plaintiff’s land between the date from which he was found by the trial judge to be a trespasser and the date on which he finally vacated the land. The plaintiff’s application, seeks, in effect, to enjoin the defendant from taking any further steps in the proceedings. The matter was argued on the basis that the defendant’s application should be determined first.

Held:

1.      The defendant’s interlocutory application (FDN 76) is dismissed.

2.      The parties will be heard as to the final disposition of the plaintiff’s application (FDN 83); the existing stay against the plaintiff enforcing his costs allocator; and the costs of the argument.

Supreme Court Civil Rules 2006 (SA) r 242, r 243, r 251, referred to.
Clarke & Ors v Edwards [2012] SASC 213, discussed.
Eckert v Roberts [2017] SASCFC 176; Roberts v Eckert [2016] SASC 197; Eckert v Roberts [2018] SASCFC 21; Hancock v Rinehart [2015] NSWSC 646; Penrice v Williams (1883) 23 ChD 353; Abigroup Ltd v Abignano (1992) 39 FCR 74; CSIRO v Perry (No 2) (1988) 53 SASR 538; Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, considered.

ROBERTS v ECKERT
[2020] SASC 27

Civil: Application

NICHOLSON J.

Introduction

  1. On 22 December 2017, this Court dismissed an appeal by Mr Eckert, the defendant,[1] from a trial judgment by Hinton J of this Court[2] delivered on 20 December 2016[3] in favour of Mr Roberts, the plaintiff.  A fundamental matter in issue between the parties was the question of the equitable ownership of certain farming land (“the Land”) which the defendant had occupied from about 1984, first as owner but in later years as the plaintiff’s tenant.  The question of ownership was determined at trial and on appeal in favour of the plaintiff. 

    [3]    Hinton J delivered reasons for judgment on 20 December 2016 and entered formal orders on 3 February 2017.

  2. These reasons concern two applications, one by the defendant to the original proceedings…

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Roberts v Eckert [2020] SASC 27
Case
[2020] SASC 27
Decision Date

CaseChat Overview and Summary

In Roberts v Eckert, the defendant, Eckert, appealed against a trial judgment that found him to be in breach of equitable ownership of certain farming land in favour of Roberts. Eckert's appeal was dismissed, and both parties subsequently made interlocutory applications to the court. Eckert's application sought orders to address his continued occupation of Roberts' land, while Roberts sought to enjoin Eckert from taking any further steps in the proceedings. The matter was argued on the basis that Eckert's application should be determined first.

The court was required to decide whether Eckert was entitled to just allowances for rates, taxes, and expenses incurred during his occupation of the land. The court also had to determine whether Roberts was entitled to abandon his entitlement to damages for trespass to the land, conversion of grape vintages, and any assessment thereof. The court needed to decide if Roberts had the sole right to waive or abandon his entitlement to seek an assessment of damages payable by Eckert.

The court found that Eckert was not entitled to just allowances for the rates, taxes, and expenses he incurred during his occupation of the land. The court also found that Roberts had the sole right to waive or abandon his entitlement to seek an assessment of damages payable by Eckert. The court dismissed Eckert's interlocutory application and ordered the parties to be heard on the final disposition of Roberts' application, the existing stay against Roberts enforcing his costs allocator, and the costs of the argument. The court did not determine whether Eckert was insolvent, as this was not relevant to the issues before it.

Orders

Orders of the court

Held:

1. The defendant’s interlocutory application (FDN 76) is dismissed.

2. The parties will be heard as to the final disposition of the plaintiff’s application (FDN 83); the existing stay against the plaintiff enforcing his costs allocator; and the costs of the argument.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
The defendant also contends that he paid rates and taxes during his occupancy and incurred expenses to third parties, relating to harvests, that remain unpaid but for which he remains liable in the amount of $81,826.25. The defendant claims that these amounts fall within the just allowances to which he says he is entitled.The plaintiff’s essential claims and decision to abandon In addition to his entitlement to have an assessment of damages for trespass to the Land and damages for conversion of the 2016 grape vintage, in accordance with Judge’s orders 5, 6 and 7, the plaintiff also has various costs entitlements. The adjudication of the plaintiff’s costs relating to the trial and the Full Court appeal has been completed. By a final allocatur issued 17 April 2019, the plaintiff is entitled to recover $132,017.67 together with post-judgment interest on costs. The plaintiff has not sought to enforce this costs entitlement.[13][13] And is presently not entitled to do so because of a stay ordered pending the determination of the defendant’s interlocutory application presently under consideration. In addition, the plaintiff has three further sets of costs orders against the defendant which have not yet been adjudicated. These further costs (unadjudicated) are said to amount to $95,574.45 as at 7 November 2018. The plaintiff is firmly of the view that the defendant is insolvent[14] and that there is no prospect of the plaintiff recovering from the defendant any of the outstanding costs or any damages should such ultimately be awarded in his favour. Accordingly, the plaintiff is anxious to bring his dispute with the defendant to an end as soon as practicable and to incur as little further expense in doing so as possible. The plaintiff, no doubt, does not wish to run the risk that an overall accounting between the parties might result in a positive balance in favour of the defendant. In these circumstances, he has nothing to gain but risks something to lose if the proceedings were to continue.[14] Whilst the plaintiff made submissions in support of this contention, I was not asked to decide in these proceedings whether or not the defendant is insolvent. For these reasons, the plaintiff indicated during the first day of the hearing before me that he abandoned his entitlement to damages for trespass to the land, for conversion of any of the grape vintages and for any assessment thereof to take place in accordance with Judge’s orders 5, 6 and 7. When submissions resumed, having been adjourned part heard, this act or notice of abandonment was identified with more precision in the plaintiff’s supplementary outline of submissions as follows:8.The plaintiff has submitted that he is entitled to abandon or waive his entitlement to seek an assessment of the damages payable to him by the defendant, and that this is a right which exists only in the plaintiff.9.If the plaintiff is right in this contention that the right to waive or abandon exists only in him and not the defendant, then he makes that election.10.If the Court was to determine that the plaintiff’s submission was wrong as a matter of law or procedure or construction of the orders made by Hinton J, and that the defendant was entitled to proceed to the assessment of damages and to raise positive claims against the plaintiff on the assessment of damages, then the plaintiff would not so elect.(Footnotes omitted)Issues to be determined

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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