Rowe v National Australia Bank - [2025] SASCA 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ROWE & ANOR v NATIONAL AUSTRALIA BANK
[2025] SASCA 86
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Stanley)
8 August 2025
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - GENERALLY
This is an application for leave to appeal against a decision by a Supreme Court judge (the appeal judge) to refuse an extension of time and leave to appeal.
The respondent bank sought an order for possession of the applicant’s property after the applicants entered into default under a loan agreement. Further, two interested parties, the Bishops applied to be joined and sought orders ancillary to the enforcement of their judgment and an order for costs obtained against the applicants in the District Court.
On 9 October 2024, Dart AsJ made orders for possession and joined the Bishops as interested parties.
On 4 November 2024, Costello Aux AsJ made a charging order in the Bishops’ favour.

The applicants then instituted two appeals. The first appeal sought to challenge the possession order and other orders made by Dart AsJ. The second appeal sought to challenge the charging order made in favour of the Bishops by Costello Aux AsJ.
The appeal judge refused leave to appeal, finding that none of the grounds of appeal were sufficiently arguable to warrant a grant of leave to appeal. The appeal judge also dismissed an application to rely on fresh or further evidence.
Held (the Court) refusing an extension of time and refusing leave to appeal:
1.There is no basis to conclude that the appeal judge improperly exercised any discretion reposed in him, nor did he fail to take into account relevant matters when determining these or the matter more generally.
2.In all of these circumstances, the interests of justice do not favour the grant of leave to appeal because there is no merit in any of the proposed grounds, and none raise issues of principle or importance.
3.As leave to appeal should be refused, there is no utility in granting an extension of time.
4.Observations made regarding the listing of a matter before two judges of the Court of Appeal.

Uniform Civil Rules 2020 (SA) r 213.1(1)(a), referred to.
Mallios v Commissioner of Police [2025] SASCA 66; Muscatello v Check Inn Systems Pty Ltd [2024] VSC 745; P v P (2008) 216 FLR 453; Rowe v Bishop (No 3) [2023] SADC 28; Rowe v National Australia Bank Ltd [2025] SASC 50; R v Brown [2012] NTSC 1; Tipping v Stanton [2016] FamCAFC 127, considered.

ROWE & ANOR v NATIONAL AUSTRALIA BANK
[2025] SASCA 86
Court of Appeal – Civil: Livesey P and Stanley JA
THE COURT (ex tempore):
Introduction

By a notice of appeal…

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.

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Details

Case: [2025] SASCA 86
Decision Date: 8 August 2025

CaseChat Overview and Summary

This matter concerned appeals by the applicants, Rowe and another, against orders made by the Supreme Court of South Australia. The primary dispute involved a registered mortgage over the applicants' property securing a loan from National Australia Bank (the respondent). The applicants were in default under the loan agreement, and the bank had issued a letter of demand and foreshadowed possession proceedings. The appeals also involved orders relating to a judgment and costs award obtained by third parties, the Bishops, against the applicants in the District Court, and applications by the Bishops for a freezing order variation and a charging order.

The court was required to determine whether to grant leave to appeal against orders for possession, the joinder of the Bishops as interested parties, and a charging order. Additionally, the court considered whether the applicants could raise new issues and seek various documents for the first time on appeal, and whether to permit fresh or further evidence to be adduced. The applicants also sought to challenge the refusal of leave to appeal by the primary judge.

The court found that the applicants' resort to "pseudo-law" and the introduction of new issues and document requests on appeal were not permissible. These matters had either been rejected by the appeal judge or could not be raised for the first time in the appellate court. The appeal judge had carefully considered the evidence, including the loan contract, the default, and the correspondence from the bank. He had also considered the applicants' attempts to join the Bishops and the Bishops' applications for ancillary orders. The appeal judge had correctly identified that leave to appeal was required for the possession order and other interlocutory orders under the Uniform Civil Rules 2020 (SA). Ultimately, the appeal judge refused leave to appeal, finding that none of the grounds of appeal were sufficiently arguable to warrant its grant, and dismissed the application for fresh evidence.

The court dismissed the appeals, upholding the decision of the appeal judge. The applicants' attempts to introduce new arguments and evidence on appeal were unsuccessful, and the grounds of appeal were not found to be arguable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This resort to pseudo-law, disengaged from the issues actually before the Court, did not assist the applicants. The applicants also sought various documents, including on the grounds of fraud. These new requests and issues could not be raised for the first time in this Court and, otherwise, they restated requests and arguments which had been rejected by the appeal judge.The decision of the appeal judge The appeal judge gave careful and extensive reasons for decision. He had before him evidence that demonstrated that the applicants had entered into a loan contract with the respondent (the bank) on 4 March 2014 by which they were loaned the amount of $304,000, secured by a registered mortgage over the relevant property. The affidavit evidence from the bank demonstrated that the applicants were in default and had been issued with a letter of demand, together with other correspondence foreshadowing possession proceedings. Before the possession order was made, the Bishops had applied to be joined as interested parties. They also sought orders ancillary to the enforcement of their judgment and an order for costs obtained against the applicants in the District Court. The judgment concerned an unsuccessful claim made by the applicants against the Bishops concerning building work performed by the Bishops on the applicants’ property. The Bishops succeeded with their counterclaim and obtained a judgment for just over $6,350, together with an order for costs fixed in a lump sum of just over $147,200.[6] [6] Rowe v Bishop (No 3) [2023] SADC 28. There was evidence demonstrating that the applicants had not satisfied the Bishops’ judgment or costs award. The Bishops also applied for a variation of a freezing order they had previously obtained, together with a charging order against the applicants. On 9 October 2024, Dart AsJ made orders for possession and the joinder of the Bishops as interested parties. No transcript of that hearing was produced. The application for a charging order was set down for argument on 4 November 2024. On that day, orders were made by Costello Aux AsJ in favour of the Bishops. As mentioned, the first appeal challenged the order for possession and the order joining the Bishops as interested parties made on 9 October 2024. The second appeal challenged the charging order made on 4 November 2024. The appeal judge explained in his reasons that leave to appeal was required concerning the possession order by reason of r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA). As the other orders challenged in both appeals were interlocutory in nature, leave to appeal was required for those as well. The appeal judge granted the applicants a short extension of time to commence the second appeal. His Honour also granted them permission to amend the grounds concerning the first appeal to address the complaints they made about the absence of a transcript of the hearing on 9 October 2024. Ultimately, however, the appeal judge refused leave to appeal, and he dismissed an application to rely on fresh or further evidence. He found that none of the grounds of appeal were sufficiently arguable to warrant a grant of leave to appeal.[7][7] Rowe v National Australia Bank Ltd [2025] SASC 50, [18]-[20] (B Doyle J).

Ratio Decidendi

Legal Principle Established

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