Steve Phillips v Southage Pty Ltd - [2014] HCASL 62

STEVE PHILLIPS
v
SOUTHAGE PTY LTD
[2014] HCASL 62
M100/2013
M101/2013

The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Victoria, refusing the applicant extensions of time for leave to appeal against orders made by the Supreme Court of Victoria in two separate proceedings: the first about four caveats lodged over land described in Certificate of Title Vol 8215 Folio 206 ("the Property"), and the second about possession of the Property.
The applicant and his brother inherited the Property and, in 1996, sold it to Beijing Garden Resort Pty Ltd ("Beijing Garden"). Beijing Garden was the trustee of a family trust of which the applicant's children were specified beneficiaries. The applicant was a general beneficiary under the trust. He was also a director of Beijing Garden until June 2006. On 28 August 2006, the applicant was declared bankrupt.
In September 2006, Beijing Garden granted a mortgage over the Property. In May 2010, it granted a second mortgage in favour of the respondent to secure a loan of $150,000. Beijing Garden defaulted on the loan. On 30 May 2010, the Supreme Court (Mukhtar AsJ) made orders by consent that Beijing Garden pay the respondent $189,445.14 by 2 July 2012. After Beijing Garden failed to pay, the respondent obtained a warrant for possession of the Property. Following an unsuccessful application brought by the applicant in the Victorian Civil and Administrative Tribunal, the respondent entered into possession on 22 November 2012.
Between default by Beijing Garden and the date the respondent took possession, four caveats were lodged over the Property. On 6 May 2013, Vickery J ordered the removal of the caveats, finding that none of the claims asserted supported a caveatable interest in the Property. On 10 May 2013, Hargrave J made orders requiring the applicant and his agents to leave the Property, not to re-enter and not to otherwise interfere with the respondent's right to possession. The Court of Appeal (Hansen and Tate JJA) refused the applicant extensions of time for leave to appeal against the orders made by Vickery and Hargrave JJ.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
There is no reason to doubt the correctness of the Court of Appeal's refusal to allow the applicant extensions of time. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. There is no occasion to consider the applicant's application for a stay of the costs orders made in the Supreme Court.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
2 April 2014
S.M. Crennan

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: [2014] HCASL 62
Decision Date

CaseChat Overview and Summary

The case of Steve Phillips v Southage Pty Ltd involves the applicant seeking special leave to appeal against orders made by the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal had refused the applicant extensions of time for leave to appeal against orders made by the Supreme Court of Victoria in two separate proceedings. The first proceeding concerns four caveats lodged over land, and the second pertains to the possession of the land. The applicant, Steve Phillips, inherited the property in question along with his brother, who subsequently sold it to Beijing Garden Resort Pty Ltd in 1996. Beijing Garden, which held the property as trustee for a family trust, defaulted on a loan secured by a mortgage over the property, leading to the respondent, Southage Pty Ltd, obtaining a warrant for possession. The applicant's appeals against the removal of the caveats and the orders for possession were dismissed by the Supreme Court, and subsequently by the Court of Appeal.

The primary legal issue before the High Court was whether there were sufficient grounds to grant the applicant special leave to appeal against the Court of Appeal's decision to refuse extensions of time. This issue necessitated an examination of the merits of the applicant's case and the prospects of success of an appeal. The Court was required to determine if the Court of Appeal had erred in its assessment of the applicant's entitlement to extensions of time. Additionally, the Court needed to consider whether the applicant's lack of legal representation and his personal involvement in the property dispute warranted any special consideration.

The High Court found no basis to doubt the correctness of the Court of Appeal's decision to refuse extensions of time. The Court concluded that the applicant's appeal had insufficient prospects of success, and therefore, the application for special leave to appeal should be dismissed. The Court did not find it necessary to address the applicant's request for a stay of the costs orders made in the Supreme Court. The Court ordered the Registrar to draft, sign, and seal an order dismissing the application for special leave to appeal.

This decision underscores the stringent criteria for granting special leave to appeal in the High Court, particularly when the applicant is unrepresented and the appeal concerns procedural matters such as extensions of time. The Court's ruling highlights the importance of the merits of the appeal and the necessity for a clear demonstration of grounds for appeal to warrant consideration by the High Court.

Orders