KENDALL ERAINA JONES [2025] SASCA 35

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCDONALD) CIV-24-008581 First Applicant: TREVOR MATTHEW ROBERTSON Second Applicant: KENDALL ERAINA JONES Respondent: DANDAN MA First Interested Party: OFFICE OF THE REGISTRAR GENERAL Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Second Interested Party: OFFICE OF THE SURVEYOR GENERAL Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Third Interested Party: CORPORATION OF THE CITY OF PORT AUGUSTA Counsel: MR P BULLOCK - Solicitor: WALLMANS LAWYERS Hearing Date/s: 26/03/2025 File No/s: CIV-25-003138 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ROBERTSON & ANOR v MA [2025] SASCA 35 Judgment of the Court of Appeal (ex tempore) (The Honourable Justice S Doyle and the Honourable Justice Bleby) 26 March 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - GENERALLY REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE Application for a stay pending appeal and leave to appeal. On 23 April 2024, the respondent, as the registered proprietor of a property occupied by the applicants, brought an application for vacant possession. On 26 August 2024, Auxiliary Associate Justice Flourentzou granted the application. On 11 March 2025, a justice of this Court refused the applicants leave to appeal and on 13 March 2025, the Registrar issued a warrant of possession in favour of the respondent. Before this Court, the applicants now seek a stay of the Auxiliary Associate Justice’s orders, and a grant of leave to appeal. Held, per the Court, dismissing the applications for a stay pending appeal and leave to appeal: 1. The proposed appeal does not raise any issue of principle and is, in any event, without merit. Local Government Act 1999 (SA) s 184; Real Property Act 1886 (SA) ss 51A, 69, 192, referred to. -- 1 of 5 -- Robertson & Anor v Ma [2025] SASC 27, considered. -- 2 of 5 -- ROBERTSON & ANOR v MA [2025] SASCA 35 Court of Appeal – Civil: S Doyle and Bleby JJA 1 THE COURT (ex tempore): The respondent (Ms Ma) brought an application for vacant possession of a property occupied by the applicants (Mr Robertson and Ms Jones). Ms Ma, as registered proprietor, brought the application under s 192 of the Real Property Act 1886 (SA) (‘the RPA’). On 26 August 2024, Auxiliary Associate Justice Flourentzou granted the application and made an order that the applicants give the respondent vacant possession. 2 The applicants sought leave to appeal this decision to a Justice of this Court. On 11 March 2025, McDonald J refused leave to appeal. 3 On 13 March 2025, the Registrar issued a warrant of possession, which is due to be executed by tomorrow, 27 March 2025. 4 On 19 March 2025, the applicants filed a notice of appeal, seeking leave to appeal to this Court. They also filed an application seeking a stay pending appeal. 5 As they did in the appeal before McDonald J, the applicants named the Registrar-General, Surveyor-General and Corporation of the City of Port Augusta (‘the Council’) as interested parties. 6 For the reasons which follow, the proposed appeal does not have any merit. The applications for leave to appeal and a stay pending appeal must be dismissed. Background 7 The background to these proceedings is set out in some detail in the reasons of McDonald J,1 and these reasons should be read and understood in the context of that background. For present purposes it is only necessary to note a few key aspects of that background. 8 The property in question is located at 15 Mary Mackillop Road, Port Patterson, being the land at Certificate of Title Volume 6296 Folio 881 (‘the Property’). The applicants were previously the registered proprietors of the Property. 9 The applicants and the Council have been involved in a longstanding dispute. The dispute relates to attempts by the applicants to start a nursery business on the Property, the naming of a road, and various planning decisions made by the Council affecting the applicants’ home and business. Whilst in this dispute, the applicants took the position that they were entitled to withhold payment of the rates 1 Robertson & Anor v Ma [2025] SASC 27. -- 3 of 5 -- [2025] SASCA 35 The Court 2 levied by the Council, and maintained that position despite legal action by the Council to recover those rates. 10 The parties became involved in litigation both in the Magistrates Court and the Supreme Court. The former involved a claim by the Council for rates, with the applicants counterclaiming on various grounds. The latter involved judicial review proceedings in which the applicants challenged various decisions made by the Council. Those proceedings were settled pursuant to a settlement agreement dated 27 March 2023. Despite this agreement, the applicants have continued to agitate their grievances with the Council through various avenues, including further judicial review proceedings in this Court challenging various aspects of the Council’s conduct. The detail of these other proceedings is set out in the reasons of McDonald J, and need not be repeated. 11 On 24 December 2023, the Council exercised its power of sale over the Property pursuant to s 184 of the Local Government Act 1999 (SA), relying upon the applicants’ failure to pay rates for a period of over three years. It sold the property to the respondent, with settlement occurring on 9 February 2024. Upon settlement, the respondent became the registered proprietor of the Property. 12 After her informal attempts to obtain vacant possession were unsuccessful, the respondent sought and obtained the order for vacant possession from Flourentzou AAJ mentioned at the outset of these reasons. In seeking to resist that order, the applicants had sought to rely upon complaints about the description of the Property in the certificate of title as well as various aspects of the Council’s conduct in connection with the sale of the Property to the respondent. In making the order for vacant possession, her Honour held that these complaints lacked any evidential basis or merit, but were, in any event, irrelevant. The certificate of title was conclusive evidence of the respondent’s interest as registered proprietor,2 and as the respondent was a bona fide purchaser for value, her interest was indefeasible. None of the limited exceptions to indefeasibility under s 69 of the RPA were applicable. As the registered proprietor, the respondent was therefore entitled to an order for vacant possession under s 192 of the RPA. 13 In refusing leave to appeal from that order, McDonald J held that none of the grounds of appeal sought to be relied upon by the applicants were reasonably arguable. Most of the matters relied upon related to complaints about the Council’s conduct, and could be put to one side. They could not found any challenge to the respondent’s status as registered proprietor, and hence she was entitled to an order for possession under s 192 of the RPA. Whilst the applicants alleged fraud on the part of the respondent, this was dismissed as lacking any evidential foundation and based upon speculation. The applicants’ procedural complaints, and complaint about the accuracy of the certificate of title, were also rejected as misconceived. 2 RPA, s 51A. -- 4 of 5 -- [2025] SASCA 35 The Court 3 The proposed appeal to this Court 14 The applicants’ notice of appeal lists nine proposed grounds of appeal. The applicants also filed two sets of lengthy written submissions. Most of the grounds and submissions are difficult to follow. However, they appear to involve a repetition or elaboration of the arguments pursued before McDonald J. 15 To the extent that they involve yet further attempts to ventilate the applicants’ grievances with the Council, McDonald J was correct to dismiss those complaints as irrelevant to the application for vacant possession by the respondent. That application was based upon the respondent’s status as registered proprietor which cannot be impugned by challenging the actions of the Council prior to the exercise of its power of sale under s 184 of the Local Government Act. 16 Insofar as the applicants continue to seek to allege fraud on the part of the respondent, as an exception to the indefeasibility of her title under s 69 of the RPA, those allegations continue to lack any evidentiary foundation and remain entirely speculative. 17 For the reasons given by McDonald J, the challenges to the procedure adopted by Flourentzou AAJ, and to the description of the Property given in the certificate of title, are misconceived. As to the former, it was appropriate to proceed in a summary way, given that the matter did not require the determination of any real question of fact or law. As to the latter, the Property was sufficiently described or identified, and what is contained on the title is, in any event, conclusive. 18 In short, the applicants’ proposed appeal to this Court does not raise any issue of principle or general importance and is, in any event, without merit. The applicants’ arguments in opposition to the application for vacant possession were addressed and rejected in appropriately detailed reasons given by Flourentzou AAJ and McDonald J. It would not be in the interests of justice to permit a second appeal to this Court. 19 The application for permission to appeal must be dismissed. It follows that there is also no basis for any stay pending appeal, and so that application must also be dismissed. -- 5 of 5 --