Rowe v National Australia Bank Limited

[2025] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

ROWE v NATIONAL AUSTRALIA BANK LIMITED

[2025] SASC 50

Judgment of the Honourable Justice B Doyle  

17 April 2025

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

REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - RECOVERY UNDER CLAUSE ENTITLING MORTGAGEE TO POSSESSION UPON DEFAULT OF MORTGAGOR

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY - OTHER WRITS AND MODES OF EXECUTION - CHARGING ORDERS

By Originating Application on 4 July 2024, the respondent bank (‘NAB’) sought an order for possession of the property located at 9 Fuller Street Kapunda (‘the Property’) pursuant to Part XVII of the Real Property Act 1886 (SA) and r 241.1 of the Uniform Civil Rules 2020 (SA) after the registered proprietors (‘the Rowes’) entered into default under a loan agreement.

Prior to the application for possession being determined, Matthew Stuart Bishop and Hayley Marie Bishop (‘the Bishops’) made an application to be joined as interested parties and sought the imposition of a charging order over the Property.

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 Rowes have instituted two appeals:

1.seeking to challenge the order of possession and other orders made on 9 October 2024; and

2.      seeking to challenge the charging order made on 4 November 2024.

Held, refusing leave to appeal in each matter:

1.the absence of a transcript of the hearing on 9 October 2024 did not vitiate the orders made on that occasion;

2.there was a proper basis for the possession order and no arguable basis for resisting that order was or has been proffered;

3.the order joining the Bishops had no bearing on the possession order and was not erroneous in any event;

4.any rights arising under a constructive trust or an express trust in respect of the Property were not an impediment to the making of the possession order or the charging order;

5.      permission to rely on documents or matters not in evidence at first instance should be refused.

Enforcement of Judgments Act 1991 (SA) s 8; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA); Pitjantjatjara Land Rights Act 1981 (SA); Real Property Act 1886 (SA) s 191, Part XVII; Supreme Court Act 1935 (SA) ss 7, 48, 131; Trusts (Hague Convention) Act 1991 (Cth); Uniform Civil Rules 2020 (SA) rr 11.1, 22.1, 83.11, 213.1, 241.1, referred to.
Atkinson v Federal Commissioner of Taxation [2014] FCA 1217; Australia and New Zealand Banking Group Ltd v Evans [2016] NSWSC 1742; Commonwealth Bank of Australia v Deighton [2024] WASC 410; ING Bank (Australia) Ltd v Wilson [2013] SASC 6; Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133; Makascheff v Commonwealth Bank of Australia [2016] NSWCA 126; Morros v Commonwealth Bank of Australia [2025] SASC 40; Muscatello v Check Inn Systems Pty Ltd [2024] VSC 745; P v P (2008) 216 FLR 453; [2008] FamCAFC 25; R v Brown [2012] NTSC 1; Rowe v Bishop [2022] SADC 60; Rowe v Bishop (No 3) [2023] SADC 28; Tipping v Stanton [2016] FamCAFC 127, discussed.

ROWE v NATIONAL AUSTRALIA BANK LIMITED

[2025] SASC 50

Single Judge Appeal: Civil

1. B DOYLE J:  By an Originating Application filed in this Court on 4 July 2024, National Australia Bank Ltd (‘NAB’) sought an order for possession of the property at 9 Fuller Street Kapunda (‘the Property’) pursuant to Part XVII of the Real Property Act 1886 (SA) (‘RPA’) and r 241.1 of the Uniform Civil Rules 2020 (SA).[1] 

   [1]     CIV-24-006099, FDN 1.

2. According to the certificate of title, the registered proprietors of the Property are Anthony John Rowe and Skippy Rowe ‘with no survivorship’.  The Rowes were named as respondents to the possession application.

3. The application was supported by an affidavit sworn by an employee of NAB.  She deposed to the entry into a loan contract between the Rowes (in their own right and as trustee for the Eureka Family Trust) and NAB, by which NAB lent them an amount of $304,000, secured by a registered mortgage in respect of the Property dated 4 March 2014.  The affidavit exhibited the relevant loan and security documents.  The bank employee deposed to the Rowes’ default, the issue of a letter of demand and other correspondence foreshadowing possession proceedings.[2]

   [2]     Affidavit of Jade Emily McIntyre affirmed 13 June 2024, CIV-24-006099, FDN 3.

4. After the application for possession was made, but before it was determined, Matthew Stuart Bishop and Hayley Marie Bishop (‘the Bishops’) made application[3] to be joined as interested parties and for orders ancillary to enforcement of a judgment and an order for costs obtained by them against the Rowes in a District Court proceeding.[4]

   [3]     CIV-24-006099, FDN 14.

   [4]     AMCCI-18-3078.

5. The supporting affidavit revealed that:

   (1)the Rowes instituted Magistrates Court proceedings against the Bishops in relation to building work performed by the Bishops on the Property;

   (2)the action was transferred to the District Court;

   (3)for reasons published on 10 May 2022, the Rowes’ claim for damages was dismissed and, subject to a number of outstanding matters, the Bishops were awarded the sum of $8,576 on their counterclaim;[5]

   (4)on 20 May 2022, the Bishops obtained a freezing order preventing the Rowes from dealing with or encumbering the Property until final orders were made. This order was later noted on the title to the Property;

   (5)on 31 March 2023, further reasons were published quantifying an outstanding small claim by the Rowes against the Bishops that was to be set-off against the Bishops’ claim, resulting in judgment for $6,354 in the Bishops’ favour, and ordering costs against the Rowes (including indemnity costs for part of the action) fixed in the lump sum of $147,224.20;[6]

   (6)the Rowes had not paid any amount towards the judgment or costs.

   [5]     Rowe v Bishop [2022] SADC 60.

   [6]     Rowe v Bishop (No 3) [2023] SADC 28.

6. On 8 October 2024, the Bishops filed an interlocutory application seeking a variation of the freezing order previously made and the imposition of a charging order.[7]

   [7]     CIV-24-006099, FDN 18.

7. On 9 October 2024, Dart AsJ made orders for possession and joining the Bishops as interested parties.  As is routine for hearings of the kind in question, there was no recording made of the hearing, nor any transcript produced.

8. The record of outcome discloses that Ms Rowe was present and that NAB was represented by a solicitor.  It contains the following remarks:

   Remarks

   (Mr Murphy appearing on behalf of the proposed interested parties – Matthew & Hayley Bishop – in relation to interlocutory applications FDN 14 and FDN 18).

   The interested parties have a freezing order arising from a judgment in their favour against the respondents in the District Court.  The District Court judgment is subject to an appeal which has not yet been dealt with.  The second respondent says the debt has been cleared by an instrument drawn on the US Treasury.  She also says that the proceedings are defaming her character.  There is no evidence that the debt has been paid.

9. Ms Rowe’s statement that the District Court judgment had been appealed appears to have been wrong.  There is no evidence that an appeal is on foot.

10. The Court made orders joining the Bishops as interested parties and listing the charging order application for argument on 4 November 2024.

11. In relation to the possession application, the Court granted orders in these terms:[8]

    [8]     CIV-24-006099, FDN 22.

    Terms of order

    It is ordered that:

    1.The Respondents give the Applicant possession within 14 days of service of a copy of this order on them of the land subject Memorandum of Mortgage, Registered no. 12102470, being:

    1.1     Description of land – Allotment 81 Deposited Plan 20380 in the area named Kapunda, hundred of Kapunda in the State of South Australia.

    1.2     Title reference – Volume 5310 Folio 419.

    2.If the said Respondents pay to the Applicant all monies secured by the above Memorandum of Mortgage, the Applicant (subject and without prejudice to the due exercise of any power of sale under that security) is to redeliver possession of the property to the said Respondents and discharge the Memorandum of Mortgage.

    3.That there be substituted service of this Order for Possession on the Respondents in accordance with Rule 42.7 of the Uniform Civil Rules 2020 (SA) by entering onto and leaving it at or affixing it to the property known as 9 Fuller Street, Kapunda in the State of South Australia.

    4.Any party be at liberty to apply to the Court for the discharge or a variation of this Order.

    5.All surplus proceeds from the sale of the property are to be paid into the Suitors Fund and be held there pending a resolution of the dispute between the Respondents and the Interested Parties.

12. The Bishops’ charging order application was listed for hearing on 4 November 2024.  On that date, Costello Aux AsJ made orders in these terms:[9]

    [9]     CIV-24-006099, FDN 27.

    Terms of Order

    It is ordered that:

    1.The Judgment Debtors pay the Judgment Creditor the costs of the Application for this Order and of registering this Order, which are fixed at $500.00 and of discharging this Order which are fixed at $160.00.

    2.The real property of the Judgment Debtors, being all the estate and interest of the Judgment Debtors in the land comprised of and described by Certificate of Title Register Book Volume 5310 Folio 419 situated at 9 Fuller Street, Kapunda 5373, South Australia, including all improvements on that land (‘the Property’), is hereby charged with the Judgment Debt and any interest accrued and accruing on the Judgment Debt under the Rules of Court.

    3.The charge will remain in force until any of the following occur:

    •      the Judgment Debt and costs and interest are paid in full;

    •      a memorial of the discharge of this charge is entered on the Certificate of Title of the Property in accordance with paragraph 7 of this Order; Form 150;

    •      the Court orders that the charge be discharged.

    3A.To the extent that the orders made on 9 October 2024 (FDN 22) result in the sale of the Property the Applicant to these proceedings must apply the sale proceeds in order of priority to:

    •      National Australia Bank Limited pursuant to mortgage dealing number 12102470;

    •      Mark Eric Hamilton as solicitor for Grope Hamilton Lawyers ABN 89 209 759 568 pursuant to order of the Court dated 20 February 2023 being dealing number 14156003; and

    •      this charge, with any surplus proceeds to be paid into the Suitors Fund.

    4.The Judgment Debtors prevented from dealing with the Property while the charge remains in force.

    5.The Registrar-General of the Lands Titles Registration Office shall, upon receiving an application in approved form and a sealed copy of this Order, enter a memorial of this charge on the original Certificate of Title for the property. The memorial shall be entered regardless of any Warrant of Sale, Caveat or other interest previously entered on the Certificate of Title, and despite the fact that a duplicate Certificate of Title has not been produced to the Registrar-General.

    6.This order does not prevent the Registrar-General from completing the registration of any instrument affecting the property that was produced for registration prior to the Registrar-General receiving the application described in paragraph 5 of this Order.

    7.The Registrar-General shall enter on the Certificate of Title for the property a memorial of the discharge of the Charge on receiving an application in approved form from the Judgment Creditor to do so.

    8.The parties, the Registrar-General and any other person affected by this Order may have liberty to apply to vary or discharge this Order.

13. The Rowes did not exercise the liberty to apply granted by paragraph 8 of those orders.  Instead:

    (1)by notice of appeal filed on 30 October 2024, they seek to challenge the order for possession and the other orders, including the order joining the Bishops as interested parties, made on 9 October 2024 (‘first appeal’);[10] and

    (2)by notice of appeal filed on 10 December 2024, they seek to challenge the charging order made on 4 November 2024 (‘second appeal’).[11]

    [10]   CIV-24-010407.

    [11]   CIV-24-011901.

14. By reason of r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA), leave to appeal is required in relation to the challenge to the possession order.  As the other orders challenged in both appeals are interlocutory in nature, leave to appeal is also required pursuant to that rule.  The second appeal requires a brief extension of time.  To the extent necessary I would grant that extension.

15. The two appeal proceedings were listed and heard together.  In connection with the first appeal, the notice of appeal contains numerous purported grounds of appeal in numbered paragraphs 1 – 18.  During the course of the hearing, the Rowes also advanced submissions relating to the absence of a transcript of the hearing on 9 October 2024.  They made oral application to amend their notice of appeal to advance those submissions.  The delay was not explained, but NAB’s counsel was not prejudiced by the lateness of the application.  To the extent necessary, I will grant permission to amend the grounds of appeal.

16. During the course of the hearing, the Rowes indicated they wanted to rely on ‘fresh’ or ‘further’ evidence.  The precise scope of the evidence to be relied upon was never made sufficiently clear, but it included documents said to evidence payment of the debt the subject of NAB’s mortgage.

17. For reasons to be explained I do not consider that the documents are capable of affecting the outcome of the first appeal.  Further, there is no sufficient explanation for why they were not the subject of affidavit evidence before Dart AsJ.  Accordingly, I would refuse the application to rely on further evidence. 

18. The material before Dart AsJ provided a sufficient basis for the making of a possession order.  As I briefly explain below, none of the grounds of appeal is sufficiently arguable to warrant a grant of leave to appeal.

19. In connection with the second appeal, the purported grounds are set out in paragraphs numbered 1 – 13.  To the extent that the Rowes seek to rely on documents they included in the appeal book which refer to a trust or trusts in respect of the Property, again, the documents are not capable of affecting the outcome of the second appeal.  There is no sufficient explanation for why they were not the subject of affidavit evidence before the charging order was made.  Again, I would refuse the application to rely on further evidence.

20. The challenge to the charging order lacks merit.  If there were merit in the arguments, or if the Rowes wished to adduce further evidence, they could and should have sought to exercise the liberty to apply granted to them.  In any event, they are not sufficiently arguable to warrant a grant of leave. 

    The conduct of the appeal hearing

21. Before explaining why I have reached the conclusions summarised above, it is appropriate to record that a number of difficulties were encountered at the hearing of the matter before me on 4 March 2024.

22. The Rowes both appeared personally and from the outset sought to interrogate the Court as to a number of matters, including whether I was present as a judge or a justice, whether I was a justice of the peace, and what my definition of ‘lawful excuse’ was.  Mr Rowe demanded that NAB’s solicitors be removed from the courtroom.  The Rowes stated they would not ‘move forward’ until other persons present, including the Bishops’ legal representatives, who they repeatedly characterised as ‘interlopers’, were removed not just ‘from the case’ but from the courtroom. 

23. When I declined to do so they repeatedly demanded that I recuse myself.  They asserted that I was obstructing judicial process.  Asserting that I was ‘operating without a monarch’, they asked ‘who are you working for?’ and purported to answer, on my behalf, ‘deep dark overlords’.

24. At one point, a woman named Sandy, who appeared to be associated with the Rowes, sought to make submissions.  She had, at the outset, purported to appear as ‘Grandmother Sandy’, a ‘senior law woman for South Australia, Northern Territory and Western Australia, on behalf of the land’. 

25. I indicated I was not persuaded she had standing but said that if the Rowes wanted to request that they be represented by another person on some identified basis then I would come back to that.  This did not deter Sandy from interrupting submissions to state that:

    Sorry, you’re on Kaurna land.  This case is dismissed. … I want it recorded that Grandmother Sandy, senior law woman of South Australia, Northern Territory and Western Australia dismisses the case.  That’s all.

26. Sandy departed for a period but returned a little later and, without permission, made some further statements in relation to the case.  Ms Rowe prefaced these remarks by stating that Sandy was ‘law over you, your Honour’.

27. Despite adopting a combative and uncooperative approach, the Rowes ultimately did take the opportunity to advance oral submissions in elaboration of their written documents.  They were given an opportunity to advance any submissions they wished to. It was only once they had exhausted that opportunity, and the other parties’ counsel were to address the Court that they again took objection to the case continuing whilst the ‘third party interloper’ was in the room.

28. When the time came for NAB’s counsel to make submissions the Rowes sought to object to this, on spurious grounds.  I overruled their objection to NAB’s counsel commencing oral submissions, which resulted in Ms Rowe ‘objecting’ to my decision and demanding to know under what authority I overruled the objection.

29. The following exchange then occurred:

    HIS HONOUR:    Now, I would much prefer that you remain here and listen to the submissions so that you can reply, but if you are disruptive you will need to leave the courtroom.

    MR ROWE: I’m asking questions.

    HIS HONOUR: I’m not proposing to answer them.  I’ve made my ruling.  Mr Marsh?

    MS ROWE: So, just before you go to Mr Marsh, please, your Honour, can anyone in the court-

    MR ROWE: You’re prejudicing our position.

    MS ROWE: Yes, he is prejudicing our position.  Can anyone in the court with full commercial liability that this written submission of the respondent was not scripted and written in legalese to deceive.

    HIS HONOUR: I will ask you to sit down now, please, because I want to hear from the respondent.

    MR ROWE: No thanks, no thank you.

    MS ROWE: I won’t be sitting down, your Honour.

    HIS HONOUR: I am going to have to direct that you leave the courtroom.

    MR ROWE: Objection.

    MS ROWE: We don’t need to sit down.

    MR ROWE: I don’t need to – I’m happy to stand up, thanks.

30. The transcript records that shortly after this exchange I adjourned briefly ‘whilst a gentleman is removed from the courtroom’.  That was a reference to a man who had been present in court sitting behind the Rowes and who had commenced to remonstrate with the sheriff’s officers.

1. Whilst the matter was adjourned, I understand that the man and the Rowes left the precincts of the Court. 

2. I was satisfied that the Rowes had concluded their submissions in support of the applications for leave to appeal.  I determined that it was appropriate to proceed in their absence to hear the submissions of the respondent and the interested party.  Out of an abundance of caution I directed that the transcript of the oral submissions of the other parties be provided to the Rowes and that they have a period of 10 days within which to provide any submissions in reply in writing.

3. The Rowes provided an email to the Court on 13 March 2024.  I have had regard to the email and its contents.  It included a request that the Court ‘discharge’ the proceedings on the additional ground that the appeal hearing proceeded ex parte.  There is a certain irony in this submission, given that the Rowes had sought to insist that their appeals be heard in the absence of parties whose interests would plainly be affected if the appeals had succeeded, or their representatives.

4. Having reviewed the transcript, I am satisfied that the Rowes were given every opportunity to make their submissions and that it was explained to them on a number of occasions that it was not appropriate for them to interfere with the other parties’ right to be heard on the applications.  The Rowes had the opportunity to respond to submissions made in their absence.  I therefore decline to ‘discharge’ the proceeding, or allow the appeals, on that basis, and I turn to the substance of the appeals.

   The first appeal

   The absence of transcript

5. The Rowes contended that the absence of transcript in respect of the hearing on 9 October 2024 involved a denial of procedural fairness which vitiated the orders made on that occasion. 

6. The Rowes relied in particular on s 131(1) of the Supreme Court Act 1935 (SA). That sub-section confers upon members of the public a right of access to a transcript of evidence taken by the court in any proceedings, a transcript of submissions by counsel and a transcript of reasons for judgment. The provision reflects the open justice principle, which is of undoubted importance.[12]  But all that means in the present context is that if a transcript had been taken of the proceedings on 9 October 2024, the Rowes, like any member of the public, would be entitled to access and take a copy of it.  The section cannot be understood as a statutory mandate that a transcript be taken of every hearing in the Supreme Court. 

   [12]   Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133.

7. In the course of written and oral submissions, the Rowes relied upon three High Court decisions and a New South Wales Court of Appeal decision that were said to emphasise the importance transcript in ensuring transparency and accountability of proceedings.[13]  These decisions do not exist and are likely AI hallucinations.

   [13]   The references given were: Dawson v Dawson (1981) 150 CLR 334, Williams v The Queen (2014) 252 CLR 108, R v Loveridge (2014) 253 CLR 293, Cranbrook Property Group Pty Ltd v Kim [2014] NSWCA 317.

8. There are, however, real decisions dealing with the significance of the unavailability of a transcript of proceedings.  As illustrated by the decision in P v P,[14] where a party wishes to challenge findings of fact on grounds that cannot be dismissed as palpably lacking in possible merit, an appeal by rehearing may be fundamentally compromised by the absence of a reliable record of what was said at trial.[15]  In rare cases that may require an appeal court to allow the appeal and remit the matter for rehearing.[16]  In other cases, the absence of part or all of the transcript has not availed the appellant, such as where the unavailable portion of transcript relates to the evidence of a witness whose credibility was not challenged and which evidence is relevant to an issue raised on appeal that lacks merit.[17]  It is necessary to have regard to the nature of the underlying proceeding,[18] the nature of the appeal and the complaints advanced on appeal, in order to make good the proposition that the unavailability of transcript actually impairs[19] the party’s capacity to exercise a right of appeal in respect of the relevant decision.

   [14] (2008) 216 FLR 453; [2008] FamCAFC 25.

   [15] (2008) 216 FLR 453; [2008] FamCAFC 25 at [78] (Finn, Coleman and Boland JJ).

   [16] (2008) 216 FLR 453; [2008] FamCAFC 25 at [85]-[88] (Finn, Coleman and Boland JJ).

   [17]   See, eg, Tipping v Stanton [2016] FamCAFC 127 at [18]-[23] (Strickland, Ainslie-Wallace and Austin JJ).

   [18]   See, eg, R v Brown [2012] NTSC 1 at [23] (Blokland J).

   [19]   See, eg, Muscatello v Check Inn Systems Pty Ltd [2024] VSC 745 at [95] (Harris J).

9. In the present case, several weeks prior to the hearing of the appeal, the Rowes were informed that possession hearings are not transcribed, with the result that it would not be possible for the Court to produce and provide a transcript in connection with the proposed appeal.  They were also advised by the Court, well prior to the hearing of the appeal, that if they wished to rely upon an affidavit deposing to things said or done during the hearing, they might file such an affidavit and request permission to rely upon it at the hearing.  They did not do so.

10. In the course of the appeal hearing, the following exchange occurred.

    HIS HONOUR: … [I]s there anything that you can point about what did or didn’t, on your case, happen at the hearing that would make the transcript particularly important?

    MS ROWE: I can’t – because the other transcript I don’t recall, I didn’t record any – I can’t record any - I can’t record anything in a court, your Honour.  I can’t do any of that.  So I’ve only got what the day that I attended, and I’ve got nothing else.

    HIS HONOUR: Yes, but –

    MS ROWE: And that’s the importance of having the transcript.

    HIS HONOUR – noting that you weren’t able to record it, which I can understand, based on your memory of what occurred, is there anything that you say would be a ground for appeal that you can’t develop because you don’t have the transcript?

    MS ROWE: All of it.  All of it, your Honour.

    HIS HONOUR: All right, but anything in particular that you can point to?

    MS ROWE: No, a lot of it.  That’s why we want the transcript, to go through it to identify things.  The whole lot of it.

    HIS HONOUR: It’s just that there may be a difference between a party who contends that they were denied procedural fairness who says ‘Well, here’s the ground I want to complain of, but I can’t establish that because of the absence of a transcript’, that’s one category, and another category where a party says ‘Well, I don’t actually have a particular complaint, but I want to review the transcript to see if I can find one’.  Now, are you in one or other of those categories?

    MS ROWE: I’m in the first one.

    HIS HONOUR: All right.  And what’s the particular complaint that you think you would be assisted by having the transcript for?

    MS ROWE: I would be assisted completely with the entire transcript because there was talking going on and I approached the court and it’s in my affidavit, I’ve got the chit and I’ve got the time in relation to getting the transcript.  So I’ve been trying to get this transcript – sorry. 

11. The affidavit to which Ms Rowe was referring, which was filed on the morning of the hearing, does not identify any particular ground of appeal in respect of which the transcript is of significance.  It simply complained, in a conclusory way, and by reference to non-existent authorities, of the absence of a transcript. 

12. In truth, the Rowes are in the second category described arguendo.  They were not able to point to any substantive complaint about what occurred in the course of the hearing in respect of which the transcript would be important.  The evidence in support of the possession order was in affidavit form.  There was no cross-examination.  Any legal argument about the sufficiency of the evidence, or the appropriateness of the order, could be advanced on appeal without reference to the submissions made below. 

13. Accordingly, whilst I would grant leave to the Rowes to amend their notice of appeal to rely upon the absence of transcript as a proposed ground of appeal, the ground of appeal is without merit.

    The joinder of the Bishops

14. The Rowes complained about the joinder of the Bishops as interested parties in the underlying proceeding on 9 October 2024.[20]  The premise for the complaint was that the Rowes had not consented to their joinder.  Their consent was not required.  The Court may at any stage order the joinder of a party to a proceeding.[21]

    [20]   See also Ground 4, CIV-24-010407, FDN 1.

    [21]   Uniform Civil Rules 2020 (SA), r 22.1(1).

15. Further, and in any event, it is impossible to discern any connection between the order joining the Bishops and the making of the possession order.  Whether there are good grounds to challenge the orders subsequently made in the Bishops’ favour on 4 November 2024 will be considered separately.  The point for present purposes is that whether or not the Bishops were properly joined as interested parties cannot have had any effect on whether the possession order was properly made in NAB’s favour.

    Asserted payment by ‘Bill of Exchange’

16. Grounds 1-3 of the appeal grounds appear to contend that the Rowes repaid the secured debt by delivery of a document referred to as ‘Commercial Note # 0510999’ and described by them as a ‘Bill of Exchange’. 

17. There was no evidence of repayment by these means before Dart AsJ when he made the possession order.  No affidavit evidence was filed by the Rowes in response to the Originating Application within the time specified by the Rules.[22]

    [22]   Uniform Civil Rules 2020 (SA), r 83.1(1).

18. It appears, however, that two documents were sent to the Registry in late August 2024.  The first was a letter addressed to the Registrar from a person described as K Jackson, ‘Executrix for the Gemmarlu2501 LR Estate Trust’.  It made the claim that ‘the property under dispute will be paid in full within 45 days by the trustee of the KJ Private Trustee Association Bank E&T’.  This was nothing more than a statement of intention.

19. The second was a document apparently made by Kelita Jackson titled ‘Proof of Fund’ which asserted that $217,363.25 was held in an account in the name of Gemmarlu2501 Living Estate Trust and that the funds were ‘clean and clear and will be reserved (‘blocked’) in favor of Anthony and Skippy Rowe for a period of sixty (60) days from the date hereon in accordance with our instructions’.

20. At the hearing before Dart AsJ on 28 August 2024, the Court was informed that the Rowes were in a position to pay out the loan but that time was required.  Dart AsJ noted that the figure in the documents was not sufficient to fully discharge the debt.  His Honour adjourned the proceeding to 9 October 2024.

21. By that date, the Rowes had still not filed an affidavit.  As was recorded in the remarks, Ms Rowe said that the debt had been cleared by instrument drawn on the US Treasury.  The Court noted, however, that there was no evidence that the debt had been paid.  That conclusion was correct.

22. Insofar as the Rowes now contend, on the application for leave to appeal, that documentation subsequently produced by them or on their behalf demonstrates that the debt has been repaid, I reject the contention.  The documents upon which they would seek to rely do not establish repayment.

23. Those documents comprised:

    ·a letter from KJ Private Association Bank E & T, with a United States address, to NAB’s solicitors, dated 4 October 2024, titled ‘Instructions to Tender Payment’.  The document is replete with pseudolaw phraseology and is lacking in any sensible content;

    ·a document signed by the Rowes and Kelita Jackson dated 4 October 2024, purporting to be instructions to tender payment; and

    ·a document with the heading ‘Certified Funds’ and a date of 10 April 2024 which includes the words ‘Pay to the Order of: United States Treasury’ the sum of A$400,000.

24. It is not clear to whom the purported payment direction is given.  The signature block reads ‘Authorizing Signature, Without Prejudice or Recourse Exemption No 626393899’, suggesting the Rowes do not intend to be bound by the document to make payment.  In any event, substituting the secured obligation to pay pursuant to the mortgage with an unsecured direction to themselves or another to pay does not amount to payment.  If the document is construed as a direction to the United States Treasury to make payment to NAB, there is no evidence that there is any foundation for the direction to be made.

25. The Rowes appear to contend that they have provided to NAB a ‘Bill of Exchange’ which has not been returned and therefore is deemed accepted for value.  Apart from the fact that NAB’s solicitors did write to the Rowes making clear that the document was not received as payment of the secured debt, the mere retention of a bill of exchange does not constitute agreement that receipt of the bill stands as payment.

26. Following a review of a number of relevant authorities,[23] it was recently observed that:[24]

    As submitted on behalf of the plaintiff, it is clear from these and other authorities dealing with similar arguments concerning promissory notes and bills of exchange, that the delivery of the promissory note by the defendant on unilateral terms does not amount to acceptance, payment or discharge of any amount owed by him to the plaintiff. It provides no arguable defence to the plaintiff's claim.

    [23]   See, in particular, Atkinson v Federal Commissioner of Taxation [2014] FCA 1217 at [30] (Jagot J), Makascheff v Commonwealth Bank of Australia [2016] NSWCA 126 at [99] (McColl JA and Emmett AJA), Australia and New Zealand Banking Group Ltd v Evans [2016] NSWSC 1742 at [54] (Garling J), ING Bank (Australia) Ltd v Wilson [2013] SASC 6 at [15] (Master Burley).

    [24]   Commonwealth Bank of Australia v Deighton [2024] WASC 410 at [81] (Master Russell). See, also, Morros v Commonwealth Bank of Australia [2025] SASC 40 at [33].

27. Contrary to the Rowes’ submissions, there is nothing in cl 11.5 of NAB’s Constitution that assists them in this regard.  It provides that:

    11.5   Signing of cheques

    The Directors may determine the manner in which and persons by whom cheques, promissory notes, bankers’ drafts, bills of exchange and other negotiable instruments, and receipts for money paid to the Company, may be signed, drawn, accepted, endorsed or otherwise executed.

28. That clause does not require NAB to accept documents of the kind purportedly relied upon by the Rowes in this case as constituting repayment of a loan.

29. To the extent that the Rowes wish to rely on fresh evidence on appeal to advance these contentions that leave should be refused for reasons including futility.  The documents do not reasonably arguably amount to proof of payment.

    Non-provision of draft minutes of order

30. Ground 5 complains that draft minutes of order lodged on 27 August 2024 were not seen by all parties.  Even if that is so, the point is an empty one.  The draft orders that were lodged effectively replicated the Originating Application.  No submission is made that identifies any prejudice arising from the Rowes not having seen the document. 

    Ex parte hearing

31. Ground 6 complains of an ex parte hearing ‘on or around 1 October 2024’.  There was no such hearing.  If reference is being made to an ex parte hearing on 26 July 2024, this was a hearing at which an order for substituted service was made, in accordance with standard practice. 

    Caveat and existence of trusts

32. These grounds appear to refer to a caveat lodged by the Rowes in respect of the Property dated 24 September 2020.  The caveat was not in evidence before Dart AsJ.  Under the caveat, the Rowes claim:

    To be beneficially entitled to an estate or interest in fee simple (in some indefinable share or shares) in the land described having contributed to the acquisition, maintenance and improvement of the land described. 

33. The caveat was lodged after the mortgage was registered.  Applying well-accepted principles of indefeasibility and priority under the Real Property Act 1886 (SA), it cannot bear on the appropriateness of the possession order.

34. It is idle to point, as the Rowes do, to the capacity under s 191 of that Act, or under the Uniform Civil Rules 2020 (SA), to make application for an extension of time for the removal of a caveat.  No such application was made and nor would it have made any difference if it had been. 

35. The Rowes’ apparent reliance on the Uniform Commercial Code is misconceived.  There is no occasion to consider the application of any law of the United States to the question of NAB’s rights under the registered mortgage in respect of land in South Australia.

36. The interest claimed in the caveat appears to be conceptually different from any beneficial interest arising under any express trust on which they may have held the property from its acquisition.  To the extent that they now wish to rely on any rights they may have had as beneficiaries under that trust, again, it does not avail them as against NAB in respect of rights arising under the registered mortgage.  The Rowes’ reliance in this context upon the Trusts (Hague Convention) Act 1991 (Cth) is without merit.

37. Accordingly, grounds 7-14 are not reasonably arguable.

    ‘War-rant for arrest’

38. Ground 15 complains that NAB’s solicitors in this matter ‘failed negotiations’ and have received a ‘War-rant’ for arrest which it is said ‘is binding and bound’. 

39. The Rowes included in the appeal book they prepared a document of some 60 pages titled ‘War-rant’.  The content of the document is irrelevant and does not warrant further discussion.

    Remaining grounds

40. Ground 16 comprises a bare reference to the identity of the process server.  No complaint, much less an intelligible ground of appeal, is identified.  The balance of the paragraphs comprise generic references to ‘other applications’ and ‘all rights’ being ‘reserved’.

    Conclusion

41. None of the grounds of appeal proposed for the first appeal has any reasonably arguable prospects of success.  Leave to appeal should be refused. 

    The second appeal

42. To the extent that the second appeal relies on grounds also pursued in the first appeal, they must be rejected.

43. The Rowes contend that by virtue of paragraph 1 of the order made on 4 November 2024, the debt was fully discharged by the payment of $160.  That is an obvious misreading of the paragraph and can be rejected without further consideration.

44. The Rowes complain that the proceeding was ‘conducted by an associate and were coram non judice, as they were not presided over by a properly constituted judge’. By reason of the combined effect of ss 7(2) and 48(2) of the Supreme Court Act 1935 (SA) and the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), read with r 11.1 of the Uniform Civil Rules 2020 (SA), the Auxiliary Associate Justice who made the orders on 4 November 2024 was empowered to do so.

45. The Rowes also make an unexplained reference to a ‘Bill of Lading’ and to the Pitjantjatjara Land Rights Act 1981 (SA).  There is nothing in that Act that has any relevance to the Property or the proceedings.  There is no reason to think that the Property falls within the land in Schedule 1 to that Act.

46. Counsel for the Bishops made submissions which assisted in identifying what might potentially underlie the oblique references by the Rowes to their status as trustees and also as caveators claiming a beneficial interest in the Property.  These submissions also explained why any potential trust rights in respect of the Property did not affect the correctness of the charging order.  This was under cover of a broader submission that the Rowes had failed to adduce evidence relevant to these matters before the Auxiliary Associate Justice.

47. Dealing first with the caveat, if it is accepted that the Rowes in their own right have some unregistered equitable interest in the Property pursuant to a constructive trust, there is no reason why a charging order could not be made over the Property. On that footing, the Rowes had both legal and beneficial interests in the Property. The Property was a proper object of a charge under s 8 of the Enforcement of Judgments Act 1991 (SA).

1. Turning to the express trust, in the course of the District Court proceedings which resulted in the costs award, Slattery DCJ found that the Rowes litigated as trustees.[25]  It would follow that they are entitled to be indemnified in respect of the costs liability they incurred in that capacity against trust assets, including the Property.  The existence of a trust was therefore not an impediment to the making of the charging order, even if there may be beneficiaries of that trust apart from the Rowes.

   [25]   Rowe v Bishop (No 3) [2023] SADC 28 at [32].

2. There is therefore no good reason to permit the Rowes to rely on fresh evidence to advance their proposed grounds of appeal.

   Disposition

3. The various arguments advanced by the Rowes lack merit.  The proposed grounds are not reasonably arguable.

4. On the basis that the proposed appeals require leave to appeal, I refuse leave to appeal.  If and to the extent that leave is not required in respect of any aspect of the appeals, I dismiss the appeals. 

5. I will hear the parties as to costs.