Rothmore Farms Pty Ltd (in Liq) v Belgravia Pty Ltd and Ors No. Scciv-99-1032

[2002] SASC 302

ROTHMORE FARMS PTY LTD (IN LIQUIDATION)
v BELGRAVIA PTY LTD and ORS
[2002] SASC 302

Civil

1. PERRY J.               This was an application by Tennyson Turner, who is one of six defendants to the proceedings, to set aside a declaration and order made by a Master, and separately for an extension of time for leave to appeal against the judgment following the trial of an action.

2. On 30 August 2002 I dismissed the application. I reserved the right to publish reasons for doing so.

3. The proceedings were instituted in the Federal Court of Australia, in which court they came to trial before Mansfield J, who delivered judgment on 4 June 1999. In his judgment, Mansfield J found that all six defendants had been instrumental in wrongfully transferring assets out of a family trust, of which the plaintiff, Rothmore Farms Pty Ltd (In Liquidation) (“Rothmore Farms”), had been trustee, into the hands of Mr Turner and a company which he controlled, namely Agri-Steel Pty Ltd (“Agri-Steel”).

4. The learned trial judge further held that Rothmore Farms was entitled to an equitable charge or a lien over the assets of the trust. Rothmore Farms was entitled to enforce the equitable charge or lien against such of the trust assets as were then held by Mr Turner or Agri-Steel, subject to an adjustment by reference to any sums expended by Mr Turner or Agri-Steel in the conduct of a farming and engineering business carried on by them in which they had utilised the assets in question.

5. As an aid to the enforcement of the equitable charge or lien to which Rothmore Farms was entitled, the trial judge ordered that an inquiry and account be conducted by the Registrar of the Federal Court to identify the assets of the trust; to identify the moneys received by Mr Turner or Agri-Steel in their conduct of the farming and engineering businesses; and to identify all moneys paid by Mr Turner and Agri-Steel in the conduct of the farming and engineering businesses from a certain date, being the date upon which one of the transactions pursuant to which the assets had been transferred out of the trust, had been effected.

6. About a fortnight after the judgment was delivered in the Federal Court, the High Court delivered its decision in Re Wakim; ex parte McNally.[1] In consequence of that decision and its impact upon the validity of the Federal Court proceedings, in August 1999 the Federal Court (State Jurisdiction) Act 1999 (SA) came into operation.

   [1] (1999) 198 CLR 511.

7. Pursuant to that Act, in August 1999, proceedings were instituted in this Court the practical effect of which was to continue in this Court the action which had been brought to trial in the Federal Court. This Court then ordered that the inquiry and account which had been ordered by Mansfield J be taken by a Master of the Court.

8. The hearing of the inquiry and account commenced before a Master on 21 September 2001. Orders giving effect to the outcome of the inquiry and account were pronounced by the Master on 2 November 2001.

9. One of the terms of that order was that Agri-Steel and Mr Turner pay to Rothmore Farms $1,189,989.

10. Against that background, the application which is before me, which was filed on 2 July 2002 (FDN No 113) seeks the following orders:

    “1.That paragraph 13 of the declaration and order made in this action by Judge Bowen Pain on the 2^nd day of November 2001 be set aside.

    2.That the accounting taken and made to reach the sum set out in the said paragraph 13 of the order of the 2^nd day of November 2001 be reviewed and a full accounting be made of the receipts and payments from the farming and machine shop business. That the execution of the order made be stayed until the accounting is re-examined.

    3.That the execution of the order made be stayed until the accounting is re-examined.

    4.That an extension of time for me to appeal the judgment of Mansfield J in action 3019 of 1999 in the Federal Court which judgment was subsequently transferred to the Supreme Court subsequent to the Wakim decision of the High Court of Australia declaring that Cross-Vesting Act of the State of South Australia was unconstitutional and invalid.

    5.Such other order or orders as the Court deems fit.”

11. As for the first three paragraphs of the application, to make the orders sought would be tantamount to allowing an appeal against Judge Bowen Pain’s order of 2 November 2001. An appeal from Judge Bowen Pain’s order would have been governed by s 50(2) of the Supreme Court Act 1935 which provides for an appeal to a single Judge from any judgment, order, direction or decision of a Master. Any such appeal would, in turn, be governed by SCR r 106.05, which by sub-rule (3) must be instituted within seven days of the decision complained of.

12. Insofar as the application seeks to set aside the declaration and order made by the Master on 2 November 2001, there is technically power to do so pursuant to SCR r 3.04, as to which no express time limit applies.

13. In support of his applications, Mr Turner filed an affidavit on 26 August 2002 in which he sets out reasons why he did not attempt to appeal earlier from the decision of Mansfield J. He contends that if Mansfield J’s decision was to be made the subject of a successful appeal, the declaration and orders made by the Master could not be allowed to stand.

14. Dealing with the application to extend the time to appeal from Mansfield J’s decision, the main point made by Mr Turner is that the Wakim decision was delivered by the High Court before the expiration of the time limit for an appeal from the judgment of Mansfield J, with the result that he was unable at that stage to file an appeal in the Federal Court.

15. As for the remedial legislation which resulted in a transfer of the proceedings to this Court, he contended that he was entitled to wait until the constitutionality of that legislation had been tested in the High Court of Australia before lodging an appeal.

16. Furthermore, he contended that certain moneys were payable to him, and a parcel of opal stones was to be returned to him by Rothmore Farms, pursuant to the order of Mansfield J. Neither of these events, which he described as “conditions precedent” to Mansfield J’s order disposing of the proceedings, had eventuated.

17. In my opinion, in the affidavit and in his oral argument to me on the hearing of the application, Mr Turner failed to identify any ground upon which it would be proper to grant an extension of time to appeal from the judgment of Mansfield J.

18. There were no “conditions precedent” to Mansfield J’s judgment. It took effect immediately according to its terms. No part of the judgment was dependent upon the carrying out of any other part.

19. Furthermore, Mr Turner had every opportunity, once the matter was transferred to this Court, to lodge an appeal in this Court against the judgment of Mansfield J, which took effect as though it was a decision of this Court. If some short extension of time had been needed after the passing of the remedial legislation for an appeal to be brought, I have no doubt that such an extension would, at that stage, have been granted, provided that reasonably arguable grounds of appeal had been advanced.

20. Mr Turner was not entitled to await the testing of the constitutionality of the remedial legislation in the High Court before proceeding with an appeal. Furthermore, the High Court rejected the challenge to the constitutionality of the remedial legislation by its judgment given on 7 December 2000 in Re Macks and Ors; ex parte Saint.[2]

    [2] (2000) 204 CLR 158.

21. As for the application to set aside the declaration and order of the Master, given my refusal of an extension of time within which to appeal from the judgment of Mansfield J, no other ground has been raised by Mr Turner which would have justified any interference with the declaration and orders of the Master.

22. For these reasons I dismissed the whole of the application.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. (1999) 198 CLR 511.

    2. (2000) 204 CLR 158.