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 86Court of Appeal – Civil: Livesey P and Stanley JA
THE COURT (ex tempore):
Introduction
By a notice of appeal…
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- Case
- [2025] SASCA 86
- Decision Date
CaseChat Overview and Summary
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.
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