Van Der Wolff v Van Der Wolff - [2024] SASCA 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
VAN DER WOLFF v VAN DER WOLFF & ORS
[2024] SASCA 125
Judgment of the Honourable Justice Bleby (ex tempore)
21 October 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Application for a stay of execution of orders pending appeal.
The applicant and the four respondents are brothers. They jointly own two titles of land at Aldgate as tenants in common in equal shares. The applicant resides on the land. The respondents made an application pursuant to ss 69 and 70 of the Law of Property Act 1936 (SA) (‘Law of Property Act’) for an order directing a sale of the property. The applicant opposed the application.
The primary judge made an order for the sale of the land. The applicant and the respondent both indicated they wished to buy the land. The applicants indicated a preference for a sale process that kept the property in the family. The applicant and the respondents each procured a valuation. The higher of these was that procured by the applicant. Neither valuation ascribed value to leases to which part of the land was subject for use of a telecommunications tower.
The applicant then indicated he could not afford to buy the land. The judge then proceeded on the basis that the land should be sold to the third respondent.
The applicant belatedly recalled an emailed offer by a third party to purchase the leases. He obtained legal representation and sought an adjournment in order to obtain a further valuation. The judge refused the application and declined to receive the email. He ordered that the property was to be offered exclusively to the third respondent in the first instance, at a purchase price of not less than the valuation obtained by the applicant.
The applicant has appealed against the orders facilitating the sale, but not the order for sale itself. There are two grounds of appeal. The first is that the primary judge erred in construing s 71 of the Law of Property Act as permitting the third respondent (as an interested party requesting sale) to purchase the applicant’s share in the property. The second complains of the stipulation of the amount for which the property is to be sold in circumstances where there was no finding as to the value of the property and no evidence adduced of value or alternatively ‘no proper evidence of value’.
The applicant now seeks a stay of execution of the primary judge’s orders pending hearing and determination of the appeal.
Held, granting a stay of the orders pending the application for leave to appeal while varying the timeline for the applicant to vacate the property in preparation for sale:
1.The applicant’s argument on the proper construction of s 71 of the Law of Property Act is reasonably arguable.
2.The balance of convenience favours preserving the subject matter of litigation. The burden to the applicant of the property not going to…

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

AGLC: Van Der Wolff v Van Der Wolff [2024] SASCA 125
Case: [2024] SASCA 125
Decision Date: 21 October 2024

CaseChat Overview and Summary

In *Van Der Wolff v Van Der Wolff*, the applicant, Mr. Richard Van Der Wolff, sought a stay of certain orders made on 16 September 2024 in action number CIV-23-008449. The dispute concerned compliance with fire safety obligations concerning a property by a specified date.

The primary legal issue before the court was whether to grant a stay of orders 3, 4, and 5, and to vary order 6, in light of the applicant's submissions regarding his inability to comply with the original orders by the deadline. The court was also required to consider the consequences of non-compliance with the varied order.

Bleby Ex Tempore J found the applicant's submissions regarding his lack of confidence in meeting the fire safety obligations by the deadline persuasive, concluding that the time for compliance had passed. Consequently, the court ordered a stay of orders 3, 4, and 5. However, order 6 was varied to require the applicant to provide vacant possession of the property and adjacent right-of-way by 4:00 pm on 23 October 2024, including the removal of all personal property and equipment.

The court further ordered that if any personal property or materials remained on the property or right-of-way after the specified time, the real estate agent was authorised to arrange for their removal by professionals forthwith, with all associated costs to be borne by the applicant. Orders 1, 2, 7, 9, and 10 were to remain unchanged, and the costs of this interlocutory application were to be part of the costs on appeal.

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

Mr Richard Van Der Wolff’s submissions as to his complete lack of confidence that the applicant could do anything, even with an extension of time, in order for all of the brothers to comply with their fire safety obligations with respect to the land before 1 November 2024, are persuasive. I think that the time for grace for the applicant to comply with that order has passed.Conclusion I am prepared to order a stay of orders 3, 4 and 5 made on 16 September 2024 in action number CIV-23-008449, being FDN 52. I will, however, make an order that order 6 of those orders be varied such that the applicant must provide vacant possession, including removal of all personal property and equipment from the property and adjacent right-of-way (driveway) of the property on or before 4:00 pm, 23 October 2024. I vary order 9 to read that should any personal property or materials remain on the property and adjacent right-of-way (driveway) after 4:00 pm, 23 October 2024, the real estate agent is authorised to arrange for professionals to attend the property and remove the same forthwith. Any costs associated with compliance with this order are to be borne by the applicant. I indicate that in this regard, orders 1, 2, 7, 9 and 10 otherwise remain unchanged. The costs of this interlocutory application are to be part of the costs on appeal.

Ratio Decidendi

Legal Principle Established

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