Woakwine Ind v Van Shaik Organic Soils & Bark Supplies P/L (No 2) No. Scciv-01-419

WOAKWINE IND v VAN SHAIK
ORGANIC SOILS & BARK SUPPLIES P/L (No 2)
[2002] SASC 199
Master’s Appeal

WILLIAMS J On 6 June 2002 I delivered my reasons for dismissing the defendant’s appeal against a Master’s decision. Counsel for the respondent (Woakwine) thereupon submitted that (in anticipation of Van Shaik exercising its right of appeal to the Full Court) I should now deal with the merits of Van Shaik’s argument that it still has grounds of defence which deserve to be addressed. Woakwine seeks to argue that there is no merit in the grounds of defence previously identified before the Master in answer to the registered proprietor’s claim for possession.
In light of this submission I directed on 6 June 2002 that judgment be not entered until I had the opportunity of considering the position. On 11 June 2002 I caused the matter to be mentioned. The appellant intimated that it intended to exercise its right of appeal to the Full Court; accordingly there was a live issue as to whether the Full Court should be provided with a decision as to the merits of the anticipated defences so as to facilitate the whole matter being reviewed at the one time in the event that the Full Court considered that my decision of 6 June 2002 was wrong.
I directed that the matter stand over for further argument on 14 June 2002.
I invited the respondent to bring forward a notice of alternative contention (SCR 97.08) supported by an application to re-open the argument. This has now been done. Even to allow this procedural step is out of the ordinary after judgment has been delivered but I considered that there was the possibility that this might be treated as a special case. In matters arising under the Real Property Act there is a special appeal regime created by SCR 106.05(2)(a) and s 50(1) of the Supreme Court Act. There is a double right of appeal in such cases where a final order has been made by a Master. As of right the appellant may appeal to a single judge and then to the Full Court. I was concerned to consider how this right might affect the nature of each appeal and as to what might be allowed in the course of the intermediate appeal to a single judge. In view of my eventual decision it is unnecessary to pursue the topic. The notice of alternative contention provides:
“…the Respondent contends that the judgment of His Honour Judge Bowen Pain, a Master of this Court, should be upheld for the reasons given by him, and in the alternative, and additionally also, upon the following grounds:-
1.The affidavit of Johannes Antonius Van Shaik filed with the Court on 31 January 2002 discloses no right of possession in the Defendant and therefore no grounds of defence to the Summons.
2.The affidavit of Johannes Antonius Van Shaik filed with the Court on 31 January 2002 discloses no grounds of defence and no grounds of claim or counterclaim against the plaintiff.”
On 14 June 2002 I heard full argument upon Woakwine’s application. I gave leave to the respondent to argue the points mentioned in the notice and I extended time for the filing of the notice. Woakwine relies in particular upon SCR 97.18(e) and submits that the power of the court should be exercised in a way which will do complete justice with respect to issues arising for determination before the Master.
There is some superficial attraction in the course which the respondent asks me to follow. Woakwine as registered proprietor claims that it is being kept out of possession by the time necessary to resolve a number of steps in a procedure which was designed to provide proprietors of land under the Real Property Act with a summary remedy against trespassers. When faced with this argument I considered that I should be prepared to explore the possibility of dealing with all outstanding possible arguments. Counsel for Van Shaik opposed that course on the ground that Woakwine’s proposal would subvert the normal appeal process; a detailed written argument was submitted in support of that contention. Ultimately it has been unnecessary for me to rule upon that objection.
I am satisfied that I should now enter judgment in terms of my reasons of 6 June 2002 without further considering the merits of the issues raised in the respondent’s notice. The grounds of this decision are:
1.That the principle of Henderson precludes these further factual questions from being now canvassed.
2.That the question of law mentioned in the notice of alternative contention has not been sufficiently identified as giving rise to an issue between the parties. It appears that Woakwine is seeking a determination as to the effect of s 87 of the Trade Practices Act whereas Van Shaik (inter alia) is seeking to take advantage of s 80. An issue has not been properly raised.
The respondent argues that in the special circumstances of this case (involving a summary application under s 192 of the Real Property Act) the Court should mould its procedure to ensure that Woakwine is not further delayed in its efforts to obtain possession. Woakwine contends that it is self evident that even if my decision of 6 June 2002 is wrong the so called “defences” deserve to be dismissed bearing in mind the history of the litigation and its outcome (as recited in pt 3 of my last judgment).
Whilst I accept that both the Master and myself had an obligation to deal with all available arguments I consider that it would be inconsistent with my earlier decision to take the matter further.
On behalf of Van Shaik it may be contended, for example that there is some statutory right to relief under the Trade Practices Act on the facts disclosed in the affidavits which I have previously recited. At least (so it is said) the point is arguable. However, to undertake such an exercise is an embarrassment. It would require me to undertake the very task which in par 28 of my last judgment I considered to be objectionable. I should not be expected to “steer around” the earlier decision of the Full Court and consider whether a dealing which falls short of giving rise to an interest in land via a contract nevertheless gives rise to some lesser species of right which is said to arise under the Trade Practices Act.
The respondent argues that in disposing of Woakwine’s application for possession the Master should have dealt with the alternative arguments advanced on behalf of Woakwine namely:
1.That a matter of law a claim for relief under s 87(2) of the Trade Practices Act cannot be an answer to a claim for possession.
2.That the facts disclosed in Van Shaik’s affidavit do not disclose grounds of defence.
Although counsel for Van Shaik is now prepared to confine his client’s further grounds of defence to an argument based upon the application of the Trade Practices Act I observe that this argument was only advanced as a supplementary submission after the Master had actually reached his decision. I set out below the course of proceedings before the Master.
Counsel for Van Shaik opposed the Woakwine’s application before the Master in the following terms:
“The application for an order is opposed, and the application for an order made today is opposed. We assess there are five primary issues for your Honour to resolve on the application for an order for possession and they are these: firstly, what is the effect of the caveat proceedings; secondly, what are the defences to the plaintiff’s claim for an order for possession, and the procedural question of how should those defences be articulated; thirdly, whether there must be a trial on those defences to possession, that is rather than your Honour attempt to resolve it on the papers; fourthly, the determination is (sic) resolution by your Honour of the defences to the claim for possession; and, fifthly, the exercise of the court’s discretion when it makes an order for possession as to the amount of time permitted for possession to be given up.”
And:
“In our contention it does not at all follow that because the defendant has lost that question, that is the contract right forming a lease, that the plaintiff is entitled to an order for possession, because the defendant relies on these principles which we say would persuade your Honour not to make an order for possession, that is it’s principles of estoppel, constructive trust and unjust enrichment, and the purpose of the affidavit of Mr Van Shaik, the one on 1 February this year, was not to reagitate the contract and part performance issue, which has been determined by the court definitively, because the defendant recognises it has lost that claim, but rather to prove the facts which give rise to the rights under estoppel, constructive trust and unjust enrichment.
It seems to us that the plaintiff has not recognised the availability of those principles to defeat the claim for an order for possession…”
And:
“What occurred in the conversations, we contend, is that there was an arrangement entered into for purchase of the land by Woakwine from Cellulose, because Mr McCourt offered to give to Van Shaik a lease of the land for five years, and because the lease was offered, Van Shaik did not compete with Woakwine for the purchase of the land. And as your Honour would know, just applying the usual principles of estoppel, there has been a representation, there has been reliance on it, there has been detriment; that is, loss of opportunity to purchase the land itself lost to Van Shaik, and then a detriment, the loss of the ability to use the land at least for the five year period of the lease, which is now challenged by the possession application, and those principles, of course, comes from Walton stores…”
And:
“…there was an arrangement between the plaintiff and the defendant which, although it does not amount to a contract in law contained in a lease, an enforceable lease and, therefore, a caveatable interest which can be protected by a caveat, there was an arrangement which does constitute defences to a claim for possession of land earlier than the expiry of the five year proposed lease term.”
(My emphasis added in order to identify how I would be expected to “steer around” the previous decision of the Full Court).
The Master made his ruling on 11 February 2002 and then adjourned to 15 February 2002. Counsel for Van Shaik then addressed the Master further as follows:
“C:Can I raise something that will go to the question of appeal - I have raised it with my friend and I think he is accommodating my position.
Your Honour will recall that I suggested that the defences to the possession were unjust enrichment constructive trust and estoppel. What I didn’t articulate was the statutory matching of those provisions, and that is relief available under either the Fair Trading Act or the Trade Practices Act for misleading or deceptive conduct. That is another defence upon which the defendant relies.
I am assuming that your Honour’s view of things remains the same, and that is that your Honour would also say that that is an issue which could have and should have been raised.
HH:Should have been raised earlier.
C:If I am wrong in that assumption then I would want your Honour’s leave to develop the argument on the additional ground of misleading or deceptive conduct. If I am not wrong in my assumption, then it is necessary for me to raise it with your Honour because I wouldn’t want to be excluded from relying on that defence as an available defence in any argument on appeal. I am more raising it for the second reason.
HH:Yes.
C:I am making an assumption that your Honour is not dissuaded from your earlier view; if I am right in all those things, then I have done enough this morning.
I think this should be on the record as well. The plaintiff should not misunderstand. There is no difference between what’s said in Mr Van Shaik’s affidavit and the enduring position of the defendant.”
It can therefore be seen how the various defences to which I referred in my previous judgment have now settled back to a case which relies upon relief under the Trade Practices Act or the Fair Trading Act although such argument was not developed before the Master.
Mr McNamara for Woakwine submits that as a matter of law s 87(2) of the Trade Practices Act would only enable the court to vary the rights of parties in circumstances where there is a “contract or arrangement” in place; he would argue that there is no contract (based on the previous decision of the Full Court) and that an “arrangement” is a term derived from pt 4 of the Trade Practices Act (see s 45) and has no relevance to the present case which must rely upon proscribed “conduct” under pt 5 (see s 51). Mr Ross Smith for Van Shaik (if now required to present an argument) would contend that his client is entitled to injunctive relief under s 80 of the Trade Practices Act to restrain Van Shaik from continuing conduct which offends s 52. However, Mr Ross Smith argues (as I have already noted) that I should not deal with these matters upon the grounds that they are beyond the ambit of the present appeal.
For the reasons given in my last judgment I am of the opinion that it is an embarrassment for the Court now to be required further to consider the circumstances which gave rise to the decision of the Full Court and to attempt to “steer around” the facts as there found. Although Van Shaik for the purpose of argument will avoid identifying an interest in land, Van Shaik will be asking the Court to look at the same facts as before but through different eyes.
It was generally for this reason that I have already decided (within the principle of Henderson) that it is vexatious now to pursue these assertions which should have been before the court (if at all) when the caveat proceedings were being heard. This may have required Van Shaik to bring further proceedings or seek additional relief within the earlier proceedings.
Having decided that the pursuit of these matters is vexatious (or an abuse) I consider that I should not proceed to deal with the defences upon the assumption that my earlier decision was wrong. I consider that the application of the principles in Henderson precludes this.
Mr McNamara argues that I should at least deal with the question of law as to the application of the Trade Practices Act. In my opinion that course is undesirable. A question of law if it arises cannot be divorced from the facts. Moreover it has not been demonstrated to me that the question of law which Mr McNamara formulates coincides with a defined principle of law which Mr Ross Smith will seek to assert as a step in his argument. Whether a question of law will arise or whether the issue should be disposed of by reference to the facts alone has not yet emerged. Mr McNamara in effect wants to force the pace by anticipating and arguing a demurrer before it arises. Mr Ross-Smith has never been called upon to articulate or formulate Van Shaik’s defence in precise terms. I do not regard it as part of my appellate role to oversee that step in the first instance. I do not consider that there is anything further which I should do in order to advance this matter. I accept that within limits the Court should be looking for ways to expedite matters and avoid a multiplicity of associated proceedings. In my opinion I should not now bend the rules. My earlier decision as to the vexatious nature of any further argument is an embarrassment.
Nevertheless the hearing of the appeal from my judgment deserves to be expedited and I will make the appropriate procedural orders.
I formally decline to deal with the merits of the matters raised in the respondent’s notice of alternative contention.
I order that judgment be entered today in terms of my reasons delivered on 6 June 2002.

[2002] SASC 199

26 June 2002