Robertson v MA

Case [2025] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

ROBERTSON & ANOR v MA

[2025] SASC 27

Judgment of the Honourable Justice McDonald  

11 March 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - GENERALLY

This is an application for leave to appeal the decision of an Auxiliary Associate Justice made on 26 August 2024 for vacant possession of the property located at Port Paterson ('the property') made pursuant to s 192 of the Real Property Act 1886 (SA). The appellants were previous owners of the property. On 24 December 2023, the third interested party (the Council) sold the property to the respondent, pursuant to s 184 of the Local Government Act 1999 (SA) with settlement occurring on 9 February 2024. The respondent brought an application for vacant possession of the property on 23 April 2024 which is the matter subject of this appeal. On 23 April 2024, the Auxiliary Associate Justice granted the application and ordered that the appellants deliver vacant possession of the property.

The appellants seek leave to appeal this decision in accordance with r 213.2(1) of the Uniform Civil Rules 2020 (SA), as the decision was made under Chapter 19, Part 11 of the Uniform Civil Rules 2020 (SA).  The institution of this appeal is conditional upon leave being granted.  On 19 December 2024, it was determined by this Court that the application for leave to appeal was to be heard separate from and in advance of the argument on the substantive appeal on the basis that there was a real question regarding the merits of the appeal.

The appellants appeal the decision of the Auxiliary Associate Justice on the grounds that the respondent engaged in fraudulent conduct which warrants the revocation of her title to the property, that the Certificate of Title of the property is false in a material particular and that the title transfer was not conducted in accordance with s 102 of the Real Property Act 1886 (SA).

The appellants further contend that it was inappropriate and procedurally unfair for the Auxiliary Associate Justice to address the matter summarily in circumstances in which the appellants relied on discovery to support their case.  The appellants submit that the appeal should be allowed in order for them to preserve their residential status until the finalisation of a private prosecution brought by them in the Magistrates Court.

The respondent contends that leave to appeal should be refused on the grounds that the appeal has no reasonable prospects of success, there is no critical point of principle involved and that no substantial injustice will result to the appellants should the appeal be refused.  The respondent submits that the property was purchased without any wrongdoing and that the lack of access to the property throughout the time that these proceedings have…

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AGLC
Robertson v MA [2025] SASC 27
Case
[2025] SASC 27
Decision Date

CaseChat Overview and Summary

This appeal concerns an order for vacant possession made by Auxiliary Associate Justice Flourentzou on 26 August 2024, requiring Trevor Robertson and Kendall Jones to vacate the property located at 15 Mary Mackillop Road, Port Paterson SA 5700. The property was sold by the Corporation of the City of Port Augusta after the appellants failed to pay council rates. The appeal was brought by the appellants and raises questions about the validity of the possession order and the circumstances leading up to it. The appeal was heard by the Supreme Court of South Australia, which needed to decide if the appellants could challenge the possession order and the broader issues surrounding the sale of the property.

The central legal issues in this appeal revolve around the procedural correctness of the possession order and the merits of the claim for vacant possession. The appellants argue that the order was made without proper service of the proceedings on them, and that the sale of the property was unlawful due to alleged procedural irregularities. Additionally, the appellants question whether the interest parties were properly joined in the proceedings before the Auxiliary Associate Justice. The court had to consider whether the appeal was properly before it, given the procedural requirements for appealing such an order, and whether the substantive claims raised by the appellants had any merit.

The court found that there was a real question regarding the merits of the appeal, and therefore granted leave for the appeal to proceed. The court also noted the extensive history of litigation between the parties and the potential for significant costs and inconvenience if the appeal were to be dismissed without merit. The court considered the appellants' arguments regarding the procedural fairness of the possession order and the sale of the property. The court determined that the issues raised by the appellants warranted further consideration and allowed the appeal to proceed. The court’s reasoning focused on the procedural fairness of the proceedings before the Auxiliary Associate Justice and the validity of the possession order.

The final orders of the court included granting leave for the appeal to proceed and setting a date for the substantive hearing of the appeal. The court emphasized the importance of ensuring that all parties were properly joined and that procedural fairness was upheld in the proceedings. The court also noted that the appeal would be heard separately from the other ongoing litigation between the parties, aiming to minimize further costs and inconvenience. The substantive hearing of the appeal will determine the validity of the possession order and the broader issues raised by the appellants concerning the sale of the property.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal of a decision of Auxiliary Associate Justice Flourentzou made on 26 August 2024 that Trevor Robertson and Kendall Jones (‘the appellants’) give vacant possession of the land located at 15 Mary Mackillop Road, Port Paterson SA 5700 (‘the property’) being the land compromised in Certificate of Title Register Book Volume 6296, Folio 881 within 14 days of the making of the order. The order was made on 26 August 2024.Background The background to this appeal is in one sense relatively straight forward, albeit, it has become the subject of protracted and multifaceted litigation brought by the appellants. The appellants were previously the registered proprietors of the property. However, due to unpaid council rates, the Corporation of the City of Port Augusta (‘the Council’) exercised the power of sale of the property under s 184 of the Local Government Act 1999 (SA) (‘Local Government Act’). The background to that sale was a longstanding dispute between the appellants and the Council. The dispute related to attempts by the appellants to start a nursery business on the property, the naming of a road, various planning decisions made by the Council affecting the appellants’ home and business, the appellants’ failure to pay council rates, and the Council’s legal action to recover the rates by the sale of the appellants’ two properties. The appellants at all times considered that they were entitled to withhold the payment of rates from the Council. The first litigation in this matter was a claim by the Council for the recovery of rates, which was instituted in the Magistrates Court. In response, the appellants made a counterclaim raising a number of issues including an allegation that the road adjacent to the property had not been correctly named, that there had been a refusal to open the road and allegations of conflicts of interest. The claim for rate recovery was discontinued by the Council without conceding liability and on the basis that the Council reserved its right to press for the payment of the rates. The counterclaim was however maintained until the eve of trial, at which time it settled. A settlement agreement was entered into on 27 March 2023, on what was supposed to be the first day of trial. The primary purpose of the settlement agreement was to bring to a close the Magistrates Court proceedings. Following the execution of the settlement agreement, the trial did not proceed, and the Magistrate recorded the fact that the parties had reached a compromise. Each party bore its own costs. Prior to the settlement of the Magistrates Court proceedings, the appellants filed an application for the judicial review of a number of decisions that had been made by the Council’s Chief Executive Officer (‘the first judicial review’). It would appear that the appellants brought the proceedings in the Supreme Court because they formed the view that they would not be able to obtain all of the orders sought through the counterclaim in the Magistrates Court. Amongst the decisions that were the subject of the first judicial review, was a decision made on 9 August 2022, in relation to the commencement of the process for the recovery of rates, and a decision on about 20 February 2023 described as an authorisation by the Council’s Chief Executive Officer to sell the appellants’ properties at auction on 24 March 2023, to recover the debt that was the subject of the contest in the Magistrates Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As a result of the potential for conflicts to arise out of the two proceedings running in tandem, the second judicial review has been adjourned until such time that the Magistrates Court proceedings are finalised. The lower court proceedings have been the subject of an application for summary dismissal and are awaiting a ruling by the Magistrate on that application. Appeal against the decision of Auxiliary Associate Justice Flourentzou In the vacant possession appeal the Registrar General, the Surveyor General and the Council have been named as the first, second, and third interested parties. None had been a party to the proceedings before Flourentzou AAsJ. The matter was first listed before the Court on 10 December 2024. On that occasion each of the interested parties were legally represented whilst the appellants and Ms Ma were not. That position has remained the same since that time. Whilst the interested parties did not concede that they had been properly joined, at that stage they did not seek to be removed from the proceedings. The original notice of appeal sought five orders. Whilst the first order related to the order for vacant possession and subsequent costs, the other four related to the circumstances in which the Council came to make the decision to sell the property. On 19 December 2024, the appellants advised that they no longer pursued orders 2 to 5 on the basis that the issues those orders challenged were already being ventilated in the proceedings before Hughes J. The remaining order sought is to “set aside the possession order and costs order and return the matter to CIV-24-001677 that has a pre-existing judicial review order sought on some possession [sic]”. The reference to the pre-existing judicial review is the second judicial review over which Hughes J is currently presiding.Leave to appeal Pursuant to r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA), the appellants require leave to appeal, as the decision under appeal is in the nature of a judgment or order made under Chapter 19, Part 11 by a judicial officer of the Supreme Court. Chapter 19, Part 11 of the Uniform Civil Rules addresses applications for possession of land. The appellants have sought leave to appeal as required by r 213.2(1). Pursuant to r 213.2(2) the institution of the appeal is conditional upon leave being granted and, if leave to appeal is refused, that is the end of the matter and the appeal lapses. On 19 December 2024, having heard submissions from the parties, I determined to hear the application for leave to appeal separate from and in advance of the argument on the substantive appeal. I did so on the basis that on the face of it, there appeared to be a real question regarding the merits of the appeal. Further, given the history of this matter and the extent of the litigation embarked upon by the appellants, if in fact the appeal is without merit, any further cost and inconvenience, particularly for Ms Ma, should be kept to a minimum.Principles

Ratio Decidendi

Legal Principle Established

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