Roberts v Roberts - [2021] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROBERTS & ANOR v ROBERTS
[2021] SASC 99
Reasons for Decision of the Honourable Justice Hughes

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
The appellants had filed a notice of appeal with respect to the orders of Blue J made on 24 June 2021 in proceedings SCCIV-18-996 and SCCIV-20-87 and they sought a stay of the orders of Blue J pending the outcome of their appeal. The effect of the orders of Blue J was that the appellant had to transfer a piece of land to the respondent by a date nominated by the respondent and the respondent had to provide the first appellant with a sum of $3,808,305 as part of the settlement. The respondent had nominated 13 August 2021 as the date on which settlement was to take place.
Three other preliminary applications arose for determination during the hearing of the interlocutory application: an application for Mr Mark Roberts to participate in the application for a stay, an application for an adjournment of the hearing, and an application that the respondent be made available for cross-examination on the application for a stay.
Held, per Hughes J:
1. The Court declines to let Mr Mark Roberts participate in the hearing for the application for a stay;
2. The Court refuses to adjourn the hearing for the application for a stay;
3. The Court refuses the application that the respondent be made available for cross-examination on the application for a stay; and
4. The Court refuses the application for a stay of the orders of Blue J pending the outcome of the appeal; and
5. The Court grants a stay of the orders of Blue J until 18 August 2021 to allow the appellants to pursue an appeal of the decision to refuse a stay of the orders pending the outcome of the appeal, on the condition of an undertaking as to damages by the appellants.
Uniform Civil Rules 2020 (SA) r 215.4; Supreme Court Civil Rules 2006 (SA) r 300, referred to.
Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 235; Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152; Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82, applied.
Roberts v Roberts [2021] SASC 72, discussed.
Giumelliv Giumelli [1999] HCA 10; Rodda & Anor v Ian Rodda Pty Ltd [2015] SASC 95; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; Ashton v Pratt [2015] NSWCA 12; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Zanker v Kupsch [2014] SASCFC 13;

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 Roberts v Roberts

Details

AGLC: Roberts v Roberts [2021] SASC 99
Case: [2021] SASC 99
Decision Date: 16 August 2021

CaseChat Overview and Summary

The matter of Roberts v Roberts involved a dispute between the appellants, who were the children of deceased parents, and the respondent, who was their brother and the executor of the deceased parents' estate. The appellants sought a stay of execution of certain orders made by the court pending the outcome of their appeal against those orders. The case was heard in the South Australian Supreme Court. The central legal issue before the court was whether the appellants had demonstrated sufficient prejudice and a balance of convenience in their favour to warrant a stay of the orders pending the appeal. The court had to consider whether the risk of prejudice was quantifiable and whether the balance of convenience favoured the appellants. The court found that while there was a risk of prejudice to the appellants if the orders were not stayed, the extent of that risk was unquantifiable due to the contingent and uncertain nature of various factors involved. The court also noted the strongly competing interests between the parties, with the respondent arguing that if the stay was granted, he would miss the opportunity to secure favourable financing and potentially face significant adverse consequences. Ultimately, the court declined to grant the stay of the orders pending the outcome of the appeal, but granted a limited stay until 18 August 2021 to allow the appellants to pursue their appeal, subject to certain conditions. The court also made several interlocutory orders in relation to the conduct of the application for the stay, including declining to allow one of the appellants to participate in the hearing and refusing a request for the respondent to be cross-examined.

Orders

Orders of the court

Held, per Hughes J:

1. The Court declines to let Mr Mark Roberts participate in the hearing for the application for a stay;

2. The Court refuses to adjourn the hearing for the application for a stay;

3. The Court refuses the application that the respondent be made available for cross-examination on the application for a stay; and

4. The Court refuses the application for a stay of the orders of Blue J pending the outcome of the appeal; and

5. The Court grants a stay of the orders of Blue J until 18 August 2021 to allow the appellants to pursue an appeal of the decision to refuse a stay of the orders pending the outcome of the appeal, on the condition of an undertaking as to damages by the appellants.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I accept that there is a risk that, if the appellants are successful on the disposition of the appeal, the respondent will be unable to restore the appellants to their ownership of the property. The extent of that risk is determined by a number of factors including the success or otherwise of Mr Grant Roberts in making a profit (which in turn is determined by stock prices and the weather and other external and uncontrollable factors) and meeting his repayments, how long it is before the appeal takes to be determined (which is subject to a number of factors some of which are in the parties’ control and some that are not), and other events and circumstances that might arise. I am not satisfied on the evidence that the appellants have shown that the risk is quantifiable. It is certainly not inevitable that Mr Grant Roberts could not restore them to ownership of the property at any time but particularly within the next 12 months. Prejudice is established but it is contingent and the risk of it arising is unquantifiable because of the nature of the variables. For the purpose of the test however, the appellants overcome this hurdle.Evidence, submissions and consideration of the balance of convenience The balance of convenience gives rise to strongly competing interests in this matter. The prejudice to the appellants, quantifiable only by estimation and contingent on the length of time it takes for the appeal to be determined (which is partly in the control of the appellants who have only this week filed revised grounds of appeal one day before the appeal books were due to be filed), must be weighed against other factors in the assessment of the balance of convenience. In particular, the balance of convenience requires consideration of the effect of the grant of the stay upon the respondent. The respondent submits that if he cannot take the benefit of the orders now, the risk that he will not be able to take that benefit in the future, or that the benefit will be significantly reduced, is significant. The respondent relied primarily on his affidavit sworn on 11 August 2021 wherein he deposed to having signed loan and mortgage documents with Westpac on 11 August 2021 providing him with financing in the sum of $6,950,000.[16] Mr Grant Roberts proposes to pay the first appellant $3,808,305 to complete the purchase of the Pulgamurtie Land, settle his debt with Rural Bank in the sum of $1.2 million, acquire $1.5 million in stock to achieve cashflow to service the debt and generate an income, and retain $450,000 as working capital to run the property.[17] [16] Affidavit of Grant Roberts filed on 12 August 2021 at [11].[17] Ibid at [6]. Mr Grant Roberts also asserts that he will be forced into bankruptcy if the stay is granted. He says that the current terms of finance that have been offered will not be offered to him again because the market conditions currently favour him.[18] These risks are unquantifiable and are determined very much by the disposition of the appeal, and any appeal after that. He also asserts that if the land is not transferred now, there is a significantly diminished or negligible opportunity for him to buy it in the future (in accordance with the judgment or under the terms of the appellants’ wills) and that various adverse consequences will flow to him from that lost opportunity.[19] Again, the contingencies upon which those propositions are put are so uncertain that little weight can be attached to them. [18] Ibid at [7] and [29].[19] Ibid at [30] – [34].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent argued that the risk that he could not restore the land to the respondents is low based on the proposal he has for servicing the debt, the agreement of the lender to provide the finance, and the current conditions at the farm.Consideration – has prejudice been established? I accept that there is a risk that, if the appellants are successful on the disposition of the appeal, the respondent will be unable to restore the appellants to their ownership of the property. The extent of that risk is determined by a number of factors including the success or otherwise of Mr Grant Roberts in making a profit (which in turn is determined by stock prices and the weather and other external and uncontrollable factors) and meeting his repayments, how long it is before the appeal takes to be determined (which is subject to a number of factors some of which are in the parties’ control and some that are not), and other events and circumstances that might arise. I am not satisfied on the evidence that the appellants have shown that the risk is quantifiable. It is certainly not inevitable that Mr Grant Roberts could not restore them to ownership of the property at any time but particularly within the next 12 months. Prejudice is established but it is contingent and the risk of it arising is unquantifiable because of the nature of the variables. For the purpose of the test however, the appellants overcome this hurdle.Evidence, submissions and consideration of the balance of convenience The balance of convenience gives rise to strongly competing interests in this matter. The prejudice to the appellants, quantifiable only by estimation and contingent on the length of time it takes for the appeal to be determined (which is partly in the control of the appellants who have only this week filed revised grounds of appeal one day before the appeal books were due to be filed), must be weighed against other factors in the assessment of the balance of convenience. In particular, the balance of convenience requires consideration of the effect of the grant of the stay upon the respondent. The respondent submits that if he cannot take the benefit of the orders now, the risk that he will not be able to take that benefit in the future, or that the benefit will be significantly reduced, is significant. The respondent relied primarily on his affidavit sworn on 11 August 2021 wherein he deposed to having signed loan and mortgage documents with Westpac on 11 August 2021 providing him with financing in the sum of $6,950,000.[16] Mr Grant Roberts proposes to pay the first appellant $3,808,305 to complete the purchase of the Pulgamurtie Land, settle his debt with Rural Bank in the sum of $1.2 million, acquire $1.5 million in stock to achieve cashflow to service the debt and generate an income, and retain $450,000 as working capital to run the property.[17] [16] Affidavit of Grant Roberts filed on 12 August 2021 at [11].[17] Ibid at [6]. Mr Grant Roberts also asserts that he will be forced into bankruptcy if the stay is granted. He says that the current terms of finance that have been offered will not be offered to him again because the market conditions currently favour him.[18] These risks are unquantifiable and are determined very much by the disposition of the appeal, and any appeal after that. He also asserts that if the land is not transferred now, there is a significantly diminished or negligible opportunity for him to buy it in the future (in accordance with the judgment or under the terms of the appellants’ wills) and that various adverse consequences will flow to him from that lost opportunity.[19] Again, the contingencies upon which those propositions are put are so uncertain that little weight can be attached to them. [18] Ibid at [7] and [29].[19] Ibid at [30] – [34].