Robertson v MA - [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 occurred, has resulted in significant financial losses to the respondent including interest payments, utility bills, legal fees and other expenses.
The interested parties submit that leave to appeal should not be granted given that they were not a party to the original decision and thus cannot be bound by a challenge to the determination of the dispute between the appellants and respondent. The parties further contend that the appellants’ grounds of appeal do not raise any argument that should be the subject of an appeal nor do their arguments suggest a substantial injustice that would result from a refusal of leave to appeal.
Held; leave to appeal is refused:
1. The appellants have raised no arguable grounds of appeal or demonstrated that there are any significant issues of general importance to be determined.
2. The appeal is dismissed.
Local Government Act 1999 (SA) s 120, s 184, s 184(13), s 184(15); Real Property Act 1886 (SA) s 21, s 51A, s 69, s 102, s 103, s 192; Uniform Civil Rules 2020 (SA) r 213.1(1)(a), r 213.2(1), r 213.2(2), referred to.
De Pasquale v ASCF Managed Investments Pty Ltd [2021] SASC 21; Wicks v Bennett (1921) 30 CLR 80; Stuart v Kingston (1923) 32 CLR 309; Waimiha Sawmilling Co Ltd (In Liq) v Waione Timber Co Ltd [1926] AC 101, applied.

ROBERTSON & ANOR v MA
[2025] SASC 27
Appeal to a Single Judge: Civil
McDONALD J:

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.
The settlement agreement reached in the Magistrates Court contained the following clauses that related to the first judicial review proceedings:[1]
[1] Robertson & Anor v Corporation of the City of Port Augusta [2023] SASC 70 at [22].
H. Roberston & Jones commenced legal proceedings in the Supreme Court of South Australia by way of action number CIV-23-003052 relating to a range of matters including but not limited to the Council’s process of recovering council rates, conflict of interest on the part of the Council’s CEO, and naming and addressing of roads which are located near the Property (Supreme Court Proceedings).
…
L. Without any admission as to liability and/or quantum, Robertson & Jones and Council agree to settle all claims relating to the Business, the Property, the Allegations, the Magistrates Court Proceedings and the Supreme Court Proceedings.
…
THE PARTIES AGREE AS FOLLOWS
2.1 the Magistrates Court Proceedings and the Supreme Court Proceedings will be dismissed by consent orders to that effect with no order as to costs;
2.2 Robertson & Jones will at their own cost do all things necessary to effect the dismissals referenced in the immediately preceding paragraph as soon as practicable within 7 days of execution of this settlement agreement, including the execution of documents in both proceedings consenting to such orders and the Council will do all things necessary to consent to the dismissals on the terms set out in this Settlement Agreement.
…
3. In the event of a failure by Robertson & Jones to comply with clause 2.2, Council may produce this Agreement to either or both of the Supreme Court of South Australia and the Magistrates Court of South Australia in support of an application for dismissal of the claims therein in which case Robertson & Jones agree that they will take no steps to oppose orders for the dismissal of the Magistrates Court Proceedings or the Supreme Court Proceedings.
Of importance, clause 2.2 of the settlement agreement provided that the appellants would discontinue the judicial review proceedings. Clause 3 provided that in the event that clause 2.2 was not complied with, the appellants would not oppose orders for the dismissal of the Supreme Court proceedings.
On 17 March 2023, in advance of the Council proceeding with the sale of the property, the appellants filed an interlocutory application in this Court seeking an injunction preventing the sale, pending the outcome of the first judicial review. The appellants were hopeful of success in the judicial review of the decisions of the Council, resulting in there being no basis for the Council to exercise the power of sale. The appellants sought the interlocutory order to preserve the status quo until such time that those proceedings were finalised.
On 22 March 2023, Stein J heard the interlocutory application and determined that the appellants had not established that there was a serious issue to be tried and dismissed the application to stay the sale of the property. Her Honour reached that view on the basis that the Council had complied with the precondition for sale set out under s 184 of the Local Government Act and as a consequence, there was no justification for the granting of an injunction to prevent the sale going ahead.
At the conclusion of the judgment, her Honour encouraged the appellants to enter into negotiations with the Council, to avoid the sale process by the payment of outstanding rates, with discussions about a payment plan.
The appellants did not take up her Honour’s suggestion.
As a consequence of the Magistrates Court settlement agreement entered into on 27 March 2023, the respondent brought an application for summary judgment in the first judicial review proceedings, relying on the settlement agreement. It was the respondent’s submission that the Court should accept the settlement agreement as a legally binding, enforceable document and should give operation to its content by acceding to the application to dismiss the proceedings in accordance with its terms. It was further submitted that the first judicial review proceedings had no prospect of success because the settlement agreement was an absolute bar to the orders sought by the appellants.
The appellants opposed the application for summary dismissal. They contended that the settlement agreement should not be enforced. They claimed that the agreement was tainted by a lack of authority, fraud, duress and a lack of legal advice.
Hughes J rejected those submission and found that the agreement contained a valid undertaking on the part of the appellants to bring to an end, or at least not resist the ending of, the first judicial review proceedings. Her Honour determined that in those circumstances the proceedings should not be permitted to continue and summarily dismissed the application for judicial review.
The auction of the property proceeded and on 24 December 2023 the Council and Dandan Ma entered into a contract for its sale.
Ms Ma is the respondent in these proceedings.
Settlement of the contract took place on 9 February 2024, at which time Ms Ma became the registered proprietor of the property.
By letter dated 21 February 2024, Ms Ma’s solicitor wrote to the appellants stating that they were required to vacate the property within seven days as at the date of the letter.
The appellants refused to vacate. To date, almost a year later, they continue to reside on the property, denying Ms Ma access.
Proceeding before Auxiliary Associate Justice Flourentzou
On 23 April 2024, Ms Ma commenced proceedings before Flourentzou AAsJ seeking an order that the appellants deliver vacant possession of the property under s 192 of the Real Property Act 1886 (SA) (‘Real Property Act’).
In doing so, Ms Ma relied on s 69 of the Real Property Act, which relevantly provides:
69—Title of registered proprietor indefeasible
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible, subject only to the following qualifications:
(a)     Fraud
in the case of fraud, in which case any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this Act: Provided that nothing included in this subsection shall affect the title of a registered proprietor who has taken bona fide for valuable consideration, or any person bona fide claiming through or under him;
(b)     Forgery or disability
in the case of a certificate or other instrument of title obtained by forgery or by means of an insufficient power of attorney or from a person under some legal disability, in which case the certificate or other instrument of title shall be void: Provided that the title a registered proprietor who has taken bona fide for valuable consideration shall not be affected by reason that a certificate other instrument of title was obtained by any person through whom he claims title from a person under disability, or by any of the means aforesaid;
(c)     Erroneous inclusion of land
where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate of title or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under the registered proprietor;
…
Section 69 gives expression to, and at the same time qualifies, the principle of indefeasibility of title which is the foundation of the Torrens systems of title. As the Judicial Committee observed in Gibbs v Messer:[2]
The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title and to satisfy themselves of its validity.
[2] [1891] AC 248 at 254.
The next section of the Real Property Act relevant to this appeal is s 192 which states:
192—Summons to give up possession
Any of the following persons (in the following sections called the claimant) may cause any person in possession of land under the provisions of this Act to be summoned to appear before the Court to show cause why the person summoned should not give up possession to the claimant—
(a) the registered proprietor of a freehold estate in possession;
…
It followed that Ms Ma, as the registered proprietor of the property, was entitled to commence proceedings to seek vacant possession.
In response to the initiation of proceedings for vacant possession, the appellants sought an order for the contract for the sale of the property to be set aside.
In her judgment, Flourentzou AAsJ attempted to summarise the thrust of the appellants’ submissions in support of this application. Her Honour did so in the following terms:[3]
·that the property is not correctly identified, and they assert that the reference recorded on the certificate of title cannot be relied upon;
·that the Council has not correctly followed the procedure as required by s 184 of the Local Government Act;
·that the CEO of the Council has a conflict of interest that has not been disclosed to the Council in accordance with s 120 of the Local Government Act;
·that the real estate agent who was engaged by the Council to sell the Property also had a conflict of interest;
·that there is no proper signature or seal on the Contract;
·that the Respondents were complying with a payment arrangement plan that was established with the Council to keep the payment of the rates at less than three years; and
·there has been criminal conduct on behalf of the Council.
[3] Ma v Robertson & Anor (Supreme Court of South Australia, Flourentzou AAsJ, 26 August 2024) (‘Reasons’) at [19].
Having heard submissions, Flourentzou AAsJ found that Ms Ma was entitled to commence proceedings for vacant possession of the property.
Her Honour also found that the property could be readily identified, as the Certificate of Title could be relied upon pursuant to s 51A of the Real Property Act. Section 51A provides:
51A—Evidentiary
(1)Subject to this Act, a certificate of title must be accepted in legal proceedings as conclusive evidence of title to land and to any other estate or interest in land that it records and as evidence (which may be rebutted) of any other information that it records.
(2)A document that purports to have been certified by the Registrar-General to be a correct copy of a certificate of title may be accepted in legal proceedings as if it were the certificate of title.
As to the remaining issues raised by the appellants, her Honour observed that they appeared to stem from internal decisions made by the Council regarding the sale of the property and therefore any cause of action that the appellants sought to assert would need to be commenced against the Council – not Ms Ma.
Flourentzou AAsJ made the further observation that not only were the appellants’ claims not supported by evidence, but they appeared to have already been ventilated in other legal proceedings against the Council.
Her Honour accordingly found that the appellants had not established a legal argument that could satisfy the Court that the contract should be set aside.
Events subsequent to 26 August 2024
As a consequence of the decision of Flourentzou AAsJ, on 30 October 2024 an application to enforce the judgment was filed by Ms Ma and a warrant of possession of land was issued by the Sheriff to the Commissioner of Police. That warrant directed the Commissioner to take whatever lawful steps necessary to cause Ms Ma to take possession of the property and to dispossess the appellants, interested party or any other person on the property. That warrant expired on 25 February 2025.

It would appear that subsequent to the issue of the warrant, the appellants were advised that the final eviction would take place on 27 November 2024. At that time the appellants indicated an intention to appeal the decision of Flourentzou AAsJ (‘the vacant possession appeal’).
On 9 September 2024, the appellants filed a notice of appeal.[4]
[4] FDN 1.
On 14 November 2024, the acting Higher Courts Registry Co‑ordinator requested that the Sheriff’s Office put on hold the execution of the Warrant of Possession pending the outcome of the appeal.
Other proceedings currently before the Court
In addition to the vacant possession appeal there are two further sets of proceedings brought by the appellants that are currently before the Courts.
On 22 March 2024, the appellants filed an application for judicial review of the Council’s decision to sell the property (‘the second judicial review’). Those proceedings are again being heard by Hughes J.
On 2 July 2024, the appellants instituted a private prosecution in the Magistrates Court in which they charged 11 entities with a total of 372 offences.
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
Before giving consideration to the question of whether leave should be granted, it is convenient to first address the principles applicable to an application for leave to appeal.
In determining this question, the Court acts in the interest of justice and by reference to three interrelated questions:
1.Whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
2.Whether the decision raises an issue of principle or general importance; and
3.Whether allowing the decision to stand would work a substantial injustice to the appellants.
The question is assessed by the Court determining whether the contentions raised by the appellants are reasonably arguable.
There is a particular reluctance to grant leave to appeal where the impugned orders do not effect the substantive rights of the parties. It then follows that leave will be more readily granted in circumstances in which there is an impact on the party’s substantive rights.
There is no doubt that the order made by Flourentzou AAsJ has an impact on the appellants in that they will lose their home, in the event that the appeal is unsuccessful. The decision however does not determine the appellants’ right to ownership of the land. That determination had already been made. The appellants’ substantive right to the ownership of the property were impacted upon and determined by the earlier decision of the Council to utilise s 184 of the Local Government Act to sell the property.
In the circumstances of this case, the central question arising on the application for leave to appeal is whether the grounds of appeal are without merit, in that they are not reasonably arguable.
Should leave to appeal be granted?
In considering whether leave should be granted I commence by observing, without criticism, that the appellants’ written submissions (which were supplemented by oral submission in Court) reflect a misapprehension of the nature of the decision under appeal and the nature and purpose of the appeal in this Court.
The appellants’ submissions make a litany of complaints and allegations of misconduct by various parties including the Council and its employees, that have no bearing on the issue that was under consideration by Flourentzou AAsJ; consequently, they are not relevant in determining whether leave to appeal should be granted in this Court.
It is convenient to first address the nature of the application that was made before Flourentzou AAsJ.
The application that was made by Ms Ma was for vacant possession of the property. Flourentzou AAsJ was not required to determine issues about whether the Council had properly exercised its power of sale over the property (including by entering into a sale with the respondent), whether the Council or its members had engaged in fraud or had a conflict of interest or whether the Council had “stolen” the property from the appellants.
For the purpose of the Real Property Act, Ms Ma was required to prove that she was the “registered proprietor” of a freehold estate in possession. Ms Ma filed an affidavit[5] in which she deposed, amongst other things, that she had purchased the property from the Council. Exhibited to the affidavit was a contract for the sale and purchase of the property dated 24 December 2023,[6] and a “Certificate of Title Register Search” listing her as the registered proprietor in fee simple of the property. This search was undertaken on 20 March 2024.[7] The latter document was certified by the first interested party as a document displaying the records maintained in the Register Book at the time of the search and contained the Registrar-General’s seal. Pursuant to s 21 of the Real Property Act, the Registrar-General’s seal of office “shall be deemed to be issued by or under the direction of the Registrar-General without further proof, unless the contrary be shown”.
[5]     CIV-24-003972, FDN 2, Affirmed on 14 April 2024.
[6]     Ibid.
[7]     Ibid.
As set out previously, s 69 of the Real Property Act provides that the title of each registered proprietor of land, subject to such matters noted on the Certificate of Title, is “absolute and indefeasible”, subject to limited stated qualifications in that section. Each of the qualifications should not affect and does not apply to a “registered proprietor who has taken bona fide for valuable consideration”.
Ms Ma therefore established that she was the registered proprietor of the property and was a bona fide purchaser for valuable consideration. She was entitled to an order for vacant possession unless the appellants could show why they should not give up possession. In light of s 69 of the Real Property Act, the only way that the appellants could show proper cause would be to establish that the respondent had not taken the title as a bona fide purchaser for valuable consideration; that is that she was personally (or through an agent) involved in perpetrating some fraud or forgery on the appellants’, or that the portion of land had been erroneously included.
Flourentzou AAsJ considered the appellants’ arguments as to why no order for vacant possession should be made. She expressly rejected the argument that the property could not be identified and that the Certificate of Title could not be relied upon. None of the appellants’ arguments constituted a claim that the respondent was not the registered proprietor who had acquired as a bona fide purchaser for valuable consideration. Accordingly, Flourentzou AAsJ found that Ms Ma purchased the property in “good faith” and was entitled to vacant possession and that the appellants had not established “a legal argument to be satisfied that the Court could set aside the Contract”.[8]
[8] Reasons at [25]-[26].
It is implicit in her Honour’s reasons that on that basis Flourentzou AAsJ found that it was appropriate to deal with the matter summarily, as it was a “plain and obvious case”[9] that did not raise any real question to be tried, nor any question of law or fact to be determined.
[9] De Pasquale v ASCF Managed Investments Pty Ltd [2021] SASC 21.
Complaints made by the appellants on the vacant possession appeal
As I have said, the vast majority of the matters raised by the appellants relate to the decision and conduct of the Council and others, preceding the order for vacant possession. Although the appellants’ grounds of appeal appear to be a combination of a narrative history, wide ranging complaints and matters of evidence, as far as I can determine they are capable of being distilled down into five topics:
1.It was inappropriate and procedurally unfair for Flourentzou AAsJ to deal with the matter summarily, in circumstances in which the appellants intended to rely on the process of discovery to make out their case.
2.Ms Ma has engaged in fraudulent conduct such that she falls within s 69(a) of the Real Property Act.
3.That given there is no mechanism for the appellants to preserve their entitlement to the property as part of the proceedings in the Magistrates Court, the appeal should be permitted in order to maintain the current residential status quo of the appellants until the private prosecution is finalised.
4.That the Certificate of Title is false in material particulars.
5.That subsequent to the hearing, the appellants have discovered that the transfer of title was conducted in accordance with s 103 of the Real Property Act without the “prerequisite court order” set out in s 102.
I will deal with each of the issues raised separately.
1. It was inappropriate and procedurally unfair for Flourentzou AAsJ to deal with the matter summarily in circumstances in which the appellants intended to rely on the process of discovery to make out their case
The proceedings were commenced on 23 April 2024, when Ms Ma filed an application with a supporting affidavit. The appellants had the opportunity to respond and did so by filing affidavits. The certificate of record indicates that there was a hearing on 5 June 2024 before Dart AJ and an order was made that Ms Ma was to file any responding affidavits within 21 days. The argument about Ms Ma’s application for vacant possession and the appellant’s interlocutory application to set aside the contract of sale,[10] were listed on 24 July 2024. It follows that the appellants were on notice from at least that date they were required to make submissions on 24 July 2024.
[10] FDN 5 (CIV-24-003972).
In his submissions before me, Mr Robertson explained that he was not aware that the application for vacant possession would be a summary procedure, and he therefore believed that there would be a greater opportunity afforded to him to make his argument and present evidence to the Court, which he submitted was necessary because “there’s an awful lot of information that stems back to 2015 and prior to that before I started complaining”.[11]
[11] T9.
In support of this ground of appeal, Mr Robertson relied on the judgment of Livesey J (as he then was) in De Pasquale v ASCF Managed Investments Pty Ltd.[12] In that case the appellants, a married couple, appealed against an order to possess made by a Master in relation to their home at West Beach. Before the Master, the appellants had made a general allegation that they were the victims of fraud, however they could not show how that had affected the mortgagee’s right to possession. On that basis the Master made the order for possession.
[12] [2021] SASC 21.
On appeal the appellants put different and more nuanced and detailed arguments. They also sought to introduce fresh evidence. Livesey J determined that it was in the interest of justice to permit the new contentions and the tender of fresh evidence. His Honour did so on the basis that the appellants had raised a number of triable issues and therefore it was a proper case for transfer to the ordinary civil list of the General Division of the Court, to continue on to pleadings and discovery in the usual way.
In the course of his reasons, Livesey J made some observations about the manner in which such applications should proceed:[13]
By s 192 of the Real Property Act, a registered mortgagee may seek an order for possession, and “may cause any person in possession of land … to be summoned to appear before the Court to show cause why the person summoned should not give up possession …”. If the person in possession can demonstrate some dispute of substance, the practice of the Court is to direct that the matter proceed on pleadings and refer the summons into the trial list:
The provisions of s 192 and the following sections of the Real Property Act do not, in terms, limit the power of the court to make an ejectment order to cases in which no triable issue has emerged. However, assuming that the court has a discretion to decline to proceed with the determination of disputed questions of fact and law, it is apparent that it would not be right to refuse to make an order for possession if the relevant issues before the court had been fully explored and the evidence revealed that the applicant had a right to possession.
The summary procedure is reserved for those cases which are “plain and obvious”. The summary procedure is inappropriate unless “there is no real question to be tried”.
Accordingly, a matter will not be dealt with in a summary way if there is any “real question of fact or law to be determined”. The appellants argue that there are a number of triable issues and that the matter should proceed through the usual course of pleadings and discovery to trial.
(Footnotes omitted)
[13] Ibid at [6]-[8].
Critical to the determination of De Pasquale was the appellants’ ability to demonstrate on appeal that there were real questions of fact and law to be determined, albeit that they had failed to make those arguments at first instance.
The difficulty for the appellants in this matter is that they have not demonstrated that there is a real issue to be tried. As counsel for the first and second interested parties contended:[14]
[i]f someone was making an allegation of that nature against a bona fide purchaser for value, in response to a vacant possession application and they could articulate what the fraud was and how they say it occurred and why it is fraud, then that may be an appropriate matter where the summary process is not appropriate and the Court goes down the lines of requiring the parties to file pleadings and then to receive evidence and then to determine whether that fraud has in fact been proven and we simply do not get there in this matter because at the very first hurdle because the payments (sic) have never articulated any fraud that would meet the test on the part of Ms Ma or one of her agents.
[14] T33-34.
For the reasons that will follow I agree with that submission. No legitimate issue to be tried has been identified and it therefore follows that Flourentzou AAsJ did not fall into error in adopting the course that she did, nor were the appellants deprived of any procedural fairness.
2. Ms Ma has engaged in fraudulent conduct such that she falls within s 69(a) of the Real Property Act 1886 (SA)
As I understand it, up until the time that Ms Ma filed the application for vacant possession, the appellants were not aware of the identity of the purchaser of the property. During the first judicial review, in light of the potential consequences for the purchaser, Hughes J directed that the Council supply the Court with the purchaser’s details and that the Registry serve upon the purchaser a copy of the appellants’ application and notice of the date for argument, so that they could appear if they wished to make a submission. On receipt of that information, Ms Ma expressed an interest and participated as an observer by phone at the hearing of the interlocutory application, however her identity remained undisclosed.
Prior to these proceedings, the appellants had not previously made an allegation of fraud on the part of Ms Ma. Their focus had been on the Council and the individuals associated with the Council, and the sale of the property.
It is well settled that fraud on the part of persons, other than the person holding themselves out to be the registered proprietor of a property is insufficient to fall within s 69(a) of the Real Property Act. What is required is an actual fraud involving deliberate dishonesty on the part of the person holding the relevant interest (or on the part of their agent) which requires more than simply being on notice that it will defeat some other antecedent interest by having their interest registered.
The fraud referred to is s 69 of the Real Property Act is actual fraud, involving some act of dishonesty on the part of the person whose title is sought to be impacted.[15]
[15] Wicks v Bennett (1921) 30 CLR 80; Stuart v Kingston (1923) 32 CLR 309.
In Waimiha Sawmilling Co Ltd (In Liq) v Waione Timber Co Ltd[16] the privy Council discussed the nature of the fraud required to impeach a registered title:[17]
If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear. It is not, however, necessary or wise to give abstract illustrations of what may constitute fraud in hypothetical conditions, for each case must depend upon its own circumstances. The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest.
[16] [1926] AC 101.
[17] Ibid at 106-107.
The appellants have provided no evidence of any fraudulent conduct on the part of Ms Ma. Instead, Mr Robertson made assertions and cast aspersions from the bar table. These included:
·Ms Ma previously “concealed her details, other than [her] name, out of fear for the safety of [their] family”.[18] There was no basis for that fear.
·Ms Ma had been involved in previous business dealings with Craig Costello, the Council employed realtor, resulting in a conflict of interest. That conflict was not disclosed as required under s 120 of the Local Government Act.
·Ms Ma made an application for vacant possession despite being an interested party in the second judicial review. It was suggested that by making the application for vacant possession she was in some way attempting to circumvent the judicial review. Mr Robertson elaborated, “I can’t understand why she started another process. The simplest thing would have been to make submissions in 1677[19] and not start a process that I believe that she knew to be summary when through the civil matter 1677 she knows that there is an awful lot more to it than just a simple purchase”.[20]
·The price for which Ms Ma purchased the property was so far below its true value that she, as someone who works in the real estate industry, should have at least held suspicions about whether this was a “bona fide sale” or a fair price. Mr Robertson alleged “to me it suggests that she knew that there were other matters at play with regards to the price and the address and things like that”.[21]
·That as a realtor Ms Ma should have noticed irregularities in the Certificate of Title.
[18] T12.
[19] “1677” is a reference to the action number for the second judicial review proceeding.
[20] T23.
[21] T16.

As I have said, the appellants did not present any evidence to support their allegations. The claims made by the appellants rise no higher than unsubstantiated suspicions or speculation that Ms Ma has engaged in fraudulent conduct. During the course of his submissions, Mr Robertson in fact conceded on a number of occasions that he was unable point to any evidence of dishonest behaviour on the part of Ms Ma.[22]
[22] T15, 19.
The appellants have failed to establish any fraud on the part of Ms Ma, such as would be required in order to defeat a title that has otherwise been obtained by valuable consideration.
3. That given there is no mechanism for the appellants to preserve their entitlement to the property as part of the proceedings in the Magistrates Court, the appeal should be permitted in order to maintain the current residential status quo of the appellants until the private prosecution is finalised
This ground is based on a fundamental misconception, that is, that the appellants retain an entitlement to the property. They do not. With the registration of the title in Ms Ma’s name, the appellants lost all proprietary rights.
This is a far different scenario to that which was considered by Stein J on the first judicial review, when her Honour determined the interlocutory application seeking a stay of the sale of the property until the substantive issues could be determined. At that time, the appellants had a proprietary right that they sought to preserve. That is no longer the case.
Even if the appellants had retained a proprietary entitlement to the property, it would be a completely inappropriate use of this Court’s appeal processes to attempt to preserve that right to facilitate a private prosecution that has been initiated in the Magistrates Court. It would most certainly amount to an abuse of process.
4. That the Certificate of Title is false in a material particular
Paragraph 22 in the appellants’ grounds of appeal set out this ground in full. It reads:
that the Certificate is false in material particular, that the block is landlocked, that the address is false, that there is a private road published in maps causing a business interruption and that the conveyancers failed to verify the authority of the Council employees were not evidenced due to the summary nature of the hearing.
This ground appears to suggest that because of the manner in which the hearing was conducted, the appellants were deprived of the opportunity to put material before the Court establishing deficiencies in the Certificate of Title.
The ground of itself highlights the appellants’ misunderstanding of the nature of the decision made by Flourentzou AAsJ. The only issue for her Honour, once it was established that the respondent was the registered proprietor, was whether she was entitled to take possession of the property.
The issues raised by the appellants under this ground harken back to the complaints that they have made against the Council since the initial proceedings in the Magistrates Court.
The issue of complaints about “a refusal to open and name a road abutting the applicants’ property on dates ranging from 2013 onwards” is referred to in the March 2023 judgment of Stein J.[23] As I have already mentioned that issue, in combination with the other matters raised by the appellants, did not persuade her Honour that there was a serious issue to be tried.
[23] Robertson & Anor v Corporation of the City of Port Augusta [2023] SASC 41 at [2].
Similarly, in her judgment in the first judicial review, Hughes J made reference to the appellants’ counter claim in the Magistrates Court which alleged “negligence and breaches of statutory duties and sought compensation for ‘business losses as a result of the [Council] changing the name and lot numbering of the road on which the Applicants’ property is located’, and financial losses associated with the Council’s failure to advise the applicants that they would need to provide an accessible toilet at the property, failure of Council members to disclose a conflict of interest when considering the applicants’ development proposal, arising from the fact that the Council had an interest in the Arid Plains Botanic Shop, and business losses associated with the Council’s failure to maintain a road by which the applicants’ business is accessed”.[24]
[24] Robertson & Anor v Corporation of the City of Port Augusta [2023] SASC 70 at [5].
These issues were all the subject of the settlement agreement entered into in the Magistrates Court. Those proceedings were settled on the basis that all of those allegations were resolved and the Supreme Court judicial review in relation to the same matters would also be discontinued. It was on that basis that Hughes J summarily dismissed the first judicial review proceedings. It follows that these issues were determined in favour of the Council both privately, in a settlement agreement, and in addition by a judicial determination of the Supreme Court enforcing that settlement.
5. The appellants have discovered, subsequent to the hearing, that the transfer of the title was conducted in accordance with s 103 of the Real Property Act 1886 (SA) without the “prerequisite court order” set out in s 102.
The basis upon which the appellants claim that they have “discovered subsequent to the hearing” that the transfer of the title was conducted in accordance with s 103 of the Real Property Act is unclear. They allege that the transfer of the title to the property occurred pursuant to the Real Property Act “without the prerequisite court order under s 102”. Sections 102 and 103 of the Real Property Act apply to the situation in which a Court or a Judge has “made an order for the sale of any land under the provisions of this Act”.
There was no such order in this case, as s 184 of the Local Government Act creates a detailed, comprehensive regime that does not require any order of a Court or Judge. Accordingly, the Registrar-General did not exercise any powers pursuant to s 102 or s 103 of the Real Property Act. The Registrar-General was authorised to transfer the title of the property to the respondent pursuant to s 184(13) and s 184(15) of the Local Government Act and s 115A(a) of the Real Property Act, once satisfied that the freehold estate had become vested in Ms Ma by operation of s 184 of the Local Government Act, and upon receipt of an instrument of transfer under the Council’s common seal (with an accompanying statutory declaration made by the Chief Executive Officer of the Council).
It follows that the appellants’ argument is without foundation and again reflects a lack of understanding of the nature of the decision that Flourentzou AAsJ was required to make.
Conclusion
For the reasons that I have set out, the appellants have raised no arguable ground of appeal, nor have they demonstrated that there is any issue of general importance to be determined.
In those circumstances, I refuse leave to appeal.
The appeal is dismissed.