Robertson v MA - [2025] SASCA 35

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ROBERTSON & ANOR v MA
[2025] SASCA 35
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice S Doyle and the Honourable Justice Bleby)
26 March 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - GENERALLY
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE
Application for a stay pending appeal and leave to appeal.
On 23 April 2024, the respondent, as the registered proprietor of a property occupied by the applicants, brought an application for vacant possession. On 26 August 2024, Auxiliary Associate Justice Flourentzou granted the application.
On 11 March 2025, a justice of this Court refused the applicants leave to appeal and on 13 March 2025, the Registrar issued a warrant of possession in favour of the respondent.
Before this Court, the applicants now seek a stay of the Auxiliary Associate Justice’s orders, and a grant of leave to appeal.
Held, per the Court, dismissing the applications for a stay pending appeal and leave to appeal:
1. The proposed appeal does not raise any issue of principle and is, in any event, without merit.
Local Government Act 1999 (SA) s 184; Real Property Act 1886 (SA) ss 51A, 69, 192, referred to.
Robertson & Anor v Ma [2025] SASC 27, considered.

ROBERTSON & ANOR v MA
[2025] SASCA 35
Court of Appeal – Civil: S Doyle and Bleby JJA

THE COURT (ex tempore): The respondent (Ms Ma) brought an application for vacant possession of a property occupied by the applicants (Mr Robertson and Ms Jones). Ms Ma, as registered proprietor, brought the application under s 192 of the Real Property Act 1886 (SA) (‘the RPA’). On 26 August 2024, Auxiliary Associate Justice Flourentzou granted the application and made an order that the applicants give the respondent vacant possession.
The applicants sought leave to appeal this decision to a Justice of this Court. On 11 March 2025, McDonald J refused leave to appeal.
On 13 March 2025, the Registrar issued a warrant of possession, which is due to be executed by tomorrow, 27 March 2025.
On 19 March 2025, the applicants filed a notice of appeal, seeking leave to appeal to this Court. They also filed an application seeking a stay pending appeal.
As they did in the appeal before McDonald J, the applicants named the Registrar-General, Surveyor-General and Corporation of the City of Port Augusta (‘the Council’) as interested parties.
For the reasons which follow, the proposed appeal does not have any merit. The applications for leave to appeal and a stay pending appeal must be dismissed.
Background
The background to these proceedings is set out in some detail in the reasons of McDonald J,[1] and these reasons should be read and understood in the context of that background. For present purposes it is only necessary to note a few key aspects of that background.
[1] Robertson & Anor v Ma [2025]…

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 Robertson v MA

Details

AGLC: Robertson v MA [2025] SASCA 35
Case: [2025] SASCA 35
Decision Date: 26 March 2025

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia, with S Doyle and Bleby JJ presiding. The applicants, formerly registered proprietors of the Property at 15 Mary Mackillop Road, Port Patterson, sought leave to appeal and a stay pending appeal against an order for vacant possession granted to the respondent. The dispute arose from a longstanding conflict between the applicants and the Council concerning planning decisions and the applicants' refusal to pay rates, which ultimately led to the Council exercising its power of sale over the Property. The respondent purchased the Property from the Council and became the registered proprietor.

The central legal issues before the Full Court were whether the applicants had any arguable grounds to resist the order for vacant possession granted to the respondent, and consequently, whether leave to appeal and a stay should be granted. Specifically, the court considered the applicants' challenges to the description of the Property on the certificate of title and the Council's conduct in the sale, in the context of the respondent's claim as a registered proprietor under the Torrens system.

The Full Court reasoned that the respondent, as a bona fide purchaser for value who had become the registered proprietor, held an indefeasible title to the Property. This indefeasibility, protected by the Real Property Act, meant that the applicants' complaints regarding the certificate of title's description and the Council's conduct were irrelevant to the respondent's right to possession. The court found that none of the limited exceptions to indefeasibility under section 69 of the Real Property Act were applicable. Therefore, the applicants' purported grounds of appeal lacked merit.

Consequently, the Full Court dismissed the applications for leave to appeal and for a stay pending appeal.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the proposed appeal does not have any merit. The applications for leave to appeal and a stay pending appeal must be dismissed. Background The background to these proceedings is set out in some detail in the reasons of McDonald J,[1] and these reasons should be read and understood in the context of that background. For present purposes it is only necessary to note a few key aspects of that background.[1] Robertson & Anor v Ma [2025] SASC 27. The property in question is located at 15 Mary Mackillop Road, Port Patterson, being the land at Certificate of Title Volume 6296 Folio 881 (‘the Property’). The applicants were previously the registered proprietors of the Property. The applicants and the Council have been involved in a longstanding dispute. The dispute relates to attempts by the applicants to start a nursery business on the Property, the naming of a road, and various planning decisions made by the Council affecting the applicants’ home and business. Whilst in this dispute, the applicants took the position that they were entitled to withhold payment of the rates levied by the Council, and maintained that position despite legal action by the Council to recover those rates. The parties became involved in litigation both in the Magistrates Court and the Supreme Court. The former involved a claim by the Council for rates, with the applicants counterclaiming on various grounds. The latter involved judicial review proceedings in which the applicants challenged various decisions made by the Council. Those proceedings were settled pursuant to a settlement agreement dated 27 March 2023. Despite this agreement, the applicants have continued to agitate their grievances with the Council through various avenues, including further judicial review proceedings in this Court challenging various aspects of the Council’s conduct. The detail of these other proceedings is set out in the reasons of McDonald J, and need not be repeated. On 24 December 2023, the Council exercised its power of sale over the Property pursuant to s 184 of the Local Government Act 1999 (SA), relying upon the applicants’ failure to pay rates for a period of over three years. It sold the property to the respondent, with settlement occurring on 9 February 2024. Upon settlement, the respondent became the registered proprietor of the Property. After her informal attempts to obtain vacant possession were unsuccessful, the respondent sought and obtained the order for vacant possession from Flourentzou AAJ mentioned at the outset of these reasons. In seeking to resist that order, the applicants had sought to rely upon complaints about the description of the Property in the certificate of title as well as various aspects of the Council’s conduct in connection with the sale of the Property to the respondent. In making the order for vacant possession, her Honour held that these complaints lacked any evidential basis or merit, but were, in any event, irrelevant. The certificate of title was conclusive evidence of the respondent’s interest as registered proprietor,[2] and as the respondent was a bona fide purchaser for value, her interest was indefeasible. None of the limited exceptions to indefeasibility under s 69 of the RPA were applicable. As the registered proprietor, the respondent was therefore entitled to an order for vacant possession under s 192 of the RPA.[2] RPA, s 51A.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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