[2024] SASCA 6

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DART) SCCIV- 13-1185 Appellant: MOHAMAD MERHI RAMADAN AS EXECUTOR OF THE ESTATE OF MONTAHA RAMADAN Counsel: MR WJN WELLS KC WITH MR R SALLIS - Solicitor: RSA LAW First Respondent: ACN 098 408 176 PTY LTD (DEREGISTERED) No Attendance Second Respondent: SIGITA VENTRICE AS ADMINISTRATOR OF THE ESTATE OF VINCENZO VENTRICE Counsel: MR MCJ HOFFMANN KC WITH MR A BAILLIE Hearing Date/s: 09/12/2021, 10/02/2022, 31/08/2023 File No/s: CIV-21-005479 A 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. RAMADAN v ACN 098 408 176 PTY LTD & ANOR (No 2) [2024] SASCA 6 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby) 2 February 2024 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - GENERAL PRINCIPLES APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - DISSOLUTION - RESTORATION OF DEFUNCT COMPANY TO REGISTER - CONDITIONAL ORDERS FOR REINSTATEMENT Following the delivery of reasons in Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91 it is necessary to address five outstanding matters: 1. Following the death of the appellant it was necessary to amend the name of the appellant to the appellant’s personal representative. That application was not opposed. 2. By application dated 31 August 2023, the appellant sought an order that ASIC reinstate the registration of the first respondent company. 3. Whether, as an adjunct to appeal ground 2, the appellant may make an alternative claim in damages for the loss of her joint interest in the proceeds of transfer of the Woodville property in an amount of around $314,000. These were paid by the appellant’s grandson in 2016 to discharge the 2008 Loan. 4. The appellant’s entitlement to interest. -- 1 of 18 -- 5. The question of costs, including of the appeal and cross-appeal. After receiving written submissions from the parties, the Court held: 1. The name of the appellant will be amended to the name of the appellant’s personal representative. 2. There is no scope for an alternative damages claim to be made as an adjunct to appeal ground 2. Following the transfer of the Woodville property and the discharge of the 2008 Loan, the only damages claim made by the appellant concerned the loss of her proprietary interest, measured by the loss of the capital value of the Woodville property at the time of transfer. No alternative claim for damages based on the repayment of the 2008 Loan was made at the trial in 2020 and no issue or claim about that was agitated on appeal. Appeal ground 2 must be dismissed. 3. The appellant’s application for an order that ASIC reinstate the registration of the first respondent is dismissed. There is no evidence of notice to ASIC or of ASIC's attitude. The company is without a director and likely insolvent. There is no application for winding-up and no proposal to address the absence of a director. Costs 4. Subject to receipt of further submissions, it is proposed that an order be made for the respondents to pay one half of the appellant’s costs of her appeal and the respondents’ cross appeal, and for the appellant to pay the respondents’ costs of the application to order that ASIC reinstate the registration of the first respondent. Final orders 5. The parties are directed to confer and agree the calculation of interest, provide further submissions on costs (if any) and advise the terms upon which final orders may be entered by this Court in the form of draft minutes of order. Corporations Act 2001 (Cth) s 601AH; Law of Property Act 1936 (SA) s 86, referred to. Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688; Cannane v J Cannane Pty Ltd (In Liq) (1998) 192 CLR 557; Fairfield Pastoral Holding Pty Ltd v Ridge Estate Pty Ltd (No 4) (2022) 398 ALR 203; Marcolongo v Chen (2011) 242 CLR 546; Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91; Re Amtrao Pty Ltd (1994) 13 ACSR 654; Re Greenzan Pty Ltd (In Liq) (Deregistered) [2017] NSWSC 489; Re Proserpine Pty Ltd [1990] 1 NSWLR 745; Re Richmate Pty Ltd (In Liq) (Deregistered) [2015] NSWSC 2009; Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182; Wyse and Young International Pty Ltd v Corrado [2015] NSWSC 1863, considered. -- 2 of 18 -- RAMADAN v ACN 098 408 176 PTY LTD & ANOR (No 2) [2024] SASCA 6 Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA THE COURT: Introduction 1 Following the delivery of reasons on 31 August 2023, it is necessary to address five matters. These are as follows: 1. Following the death of the appellant it is necessary to amend the name of the appellant to the appellant’s personal representative. That application is not opposed and an order will be made. 2. There is an application by the appellant dated 31 August 2023 to order that ASIC reinstate the registration of the first respondent company, supported by an affidavit from the appellant’s solicitor sworn on 30 August 2023. That application is opposed. 3. It is necessary to determine whether as an adjunct to appeal ground 2 the appellant may make an alternative claim in damages for the loss of her joint interest in the proceeds of transfer of the Woodville property in an amount of around $314,000. These were paid by the appellant’s grandson to repay the 2008 Loan in 2016.1 Whilst the appellant says that there is scope to make that claim, the respondents contend that there is no scope and that appeal ground 2 should be dismissed.2 4. The question of costs, including of the appeal and cross-appeal. It will be convenient to address costs in a preliminary way at the conclusion to these reasons. Both parties have sought an opportunity to put further submissions on costs. 5. The appellant’s entitlement to interest must be determined. It will be necessary to invite the parties to address interest, as well as the form of the orders necessary to finalise this matter. 2 Between 18 October and 13 December 2023, the Court received a number of written submissions from the parties. These reasons address the application for reinstatement, the scope to make an alternative damages claim and the question of costs. 1 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [35], [200], [208] (The Court). 2 As in the primary reasons, reference will be made to “the respondents” even though the carriage of the appeal was borne by the second respondent. -- 3 of 18 -- [2024] SASCA 6 The Court 2 Disposition of the further issues 3 On the application for reinstatement, various of the prerequisites for the making of an order under s 601AH of the Corporations Act 2001 (Cth) have not been addressed and it is clear that the appellant wishes to adduce evidence which has not previously been considered by the Court of Appeal. Moreover, and as the respondents emphasised, although reinstatement is intended to facilitate a liquidation of the first respondent and an investigation of its affairs by a liquidator, no application for liquidation has been made. 4 In these circumstances, the application must be dismissed. It will be a matter for the appellant whether another application is made to a master so that appropriate findings can be made. 5 There is no scope for an alternative damages claim to be made as an adjunct to appeal ground 2. Following the transfer of the Woodville property and the discharge of the 2008 Loan, the only damages claim made by the appellant in 2020 concerned the loss of her proprietary interest, measured by the capital value of the Woodville property at the time of transfer. No alternative claim for damages based on the repayment of the 2008 Loan was made and no issue or claim about that was agitated on appeal. Appeal ground 2 must be dismissed. 6 As for costs, a broad approach is necessary in order to bring all of the relevant considerations to a conclusion. The Court’s approach and the orders which it is proposed be made are outlined at the conclusion to these reasons. The application to reinstate made pursuant to s 601AH of the Corporations Act 2001 (Cth) 7 By an application dated 31 August 2023 the appellant sought the reinstatement of the first respondent “by ASIC”. The application was made specially returnable before this Court at the time of delivery of reasons. 8 The application was supported by an affidavit from the appellant’s solicitor exhibiting an ASIC extract which recorded that the first respondent was incorporated on 11 October 2001 and deregistered on 15 December 2021. 9 The appellant’s solicitor deposed that the liabilities of the first respondent pursuant to the orders made by the master on 11 May 2021 “are yet to be satisfied” and it was on that sole basis that the appellant sought an order pursuant to s 601AH of the Corporations Act 2001 (Cth) that ASIC reinstate the registration of the first respondent. 10 The solicitor’s affidavit also recorded the death of the second respondent on 20 February 2022. An order was made some time ago substituting his personal representative. -- 4 of 18 -- [2024] SASCA 6 The Court 3 Preliminary observations 11 It is appropriate to make some preliminary observations before addressing the contentions of the parties concerning reinstatement. Section 601AH(2) of the Corporations Act 2001 (Cth) provides: 601AH Reinstatement … Reinstatement by Court (2) The Court may make an order that ASIC reinstate the registration of a company if: (a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and (b) the Court is satisfied that it is just that the company’s registration be reinstated. 12 As s 601AH(2) requires, the application in this case is expressed in terms that the Court order that ASIC reinstate the registration of the first respondent. Although the order is addressed to ASIC, the appellant has adduced no evidence that ASIC has been notified, or of ASIC’s attitude to the application. There is no application to join ASIC to the relevant proceeding. 13 The application is not made by a former liquidator of the company and so it is necessary for the appellant to demonstrate that she is “a person aggrieved by the deregistration”, as s 601AH(2)(a)(i) requires. 14 The clear implication from the statement made in the solicitor’s affidavit to the effect that the liabilities of the first respondent are yet to be satisfied is that the appellant claims to be a creditor of the deregistered company. Whilst demonstrating that the appellant is a creditor might be thought a necessary step, it is not necessarily sufficient to demonstrate a proper interest in the company’s reinstatement.3 Whilst a desire to commence or continue proceedings, or obtain and execute a judgment, against a deregistered company will very often furnish a proper basis for reinstatement, it is nonetheless relevant for the Court to consider whether, in all of the circumstances, it is just that it exercise its discretion to order reinstatement. 15 The application does not address why it would be just that the company’s registration be reinstated as s 601AH(2)(b) requires. 16 The effect of re-registration is likely to resurrect a company which has not been trading and which appears to be without assets. The likelihood is that the company is insolvent within the meaning of s 95A of the Corporations Act 2001 3 Wyse and Young International Pty Ltd v Corrado [2015] NSWSC 1863, [43] (White J). -- 5 of 18 -- [2024] SASCA 6 The Court 4 (Cth). Whilst one purpose of re-registration is to appoint a liquidator to investigate the affairs of the company, no application for winding-up or the appointment of a liquidator has been made. 17 Indeed, and as the appellant’s affidavit demonstrates, following deregistration in 2021 the first respondent sole director died in 2022. The application does not address the absence of a director nor how that will be addressed. 18 These difficulties demonstrate that the application must be dismissed. The contentions of the parties on reinstatement 19 At the time of delivery of reasons, it was unclear whether or on what basis the respondents were likely to oppose the reinstatement of the first respondent. Accordingly, the Court invited submissions from the respondents and gave the appellant the opportunity to file responding submissions. 20 The respondents opposed the application, pointing out that they had written to the appellant’s solicitors on 26 September 2023 seeking: 1. The basis upon which the company is sought to be reinstated; 2. Why the appellant is a “person aggrieved” by the deregistration; and 3. The intended purpose of the reinstatement. 21 The respondents pointed to the absence of any response from the appellant to this letter by the time their submissions were filed on 18 October 2023. Moreover, the respondents observed that in the absence of the sole director and secretary of the first respondent, were the first respondent to be re-registered it would likely be “delinquent”. 22 In response to these propositions, the appellant referred to a large number of historical events dating back to 2013, albeit without adducing any evidence of them. These included the failed application for a freezing order requiring that Ballsam Pty Ltd (Ballsam), a company controlled by the appellant’s family that had had dealings with the first respondent, pay into the Supreme Court Suitors Fund the sum of $350,00 payable by Ballsam to the first respondent. This was said to follow a settlement reached in a different Supreme Court action. There was no evidence about that action nor about the issues raised in it. 23 The appellant also referred to the cross-examination of the appellant’s son during the 2016 trial of these proceedings in which it was suggested that the present litigation was “a tactic for you to claw back some of the money that Ballsam had been ordered to pay Mr Ventrice and his companies”.4 4 Ramadan v ACN 098 408 176 Pty Ltd [2017] SASC 63, [60] (Judge Dart). -- 6 of 18 -- [2024] SASCA 6 The Court 5 24 The appellant then addressed in some detail the de-registrations which occurred in 2017, which were apparently each followed by orders for reinstatement. Further, the appellant described a third de-registration during 2021 which was effected in the “lead up” to the subject appeal hearing. As to these the appellant submitted:5 It appears from the foregoing that the second respondent sought on three occasions to de-register the company. On each occasion litigation was pending against the company. On the two later occasions, the company was not only involved in ongoing litigation, but a money judgment had been awarded against it and it had a liability to the plaintiff for costs, neither of which had been satisfied. Despite this, on each occasion, Ventrice had falsely declared to ASIC that there was no litigation pending against the company and on two of those occasions had falsely declared to ASIC that there were no outstanding liabilities of the company. 25 The appellant went so far as to submit that these circumstances gave rise to an inference that the second respondent had caused the first respondent to divest itself of assets in order to deny the appellant satisfaction of any judgment in these proceedings. On this basis, the appellant submitted that further investigation was “amply justified” pursuant to s 86 of the Law of Property Act 1936 (SA), or by a liquidator upon a winding-up conducted under Part 5.7B of the Corporations Act 2001 (Cth). Detailed submissions were then made by the appellant about the authorities concerning when an intention to defraud creditors may be established by proof of dishonest conduct.6 26 In support of the proposition that the appellant is a person aggrieved, the appellant made submissions about the breadth of the term “creditor” within s 86 of the Law of Property Act 1936 (SA). The appellant submitted that she came within a class of persons “who are, or may be, owed money, the recovery of which may be frustrated by the conveyance of property”.7 The appellant submitted that she was aggrieved by deregistration as her legal rights were affected because deregistration precluded her from pursuing recovery of the judgment award as well as costs.8 27 Finally, the appellant submitted that no reasonable explanation for deregistration had been advanced by either respondent, and that it was appropriate for this Court to take into account the circumstances in which the company came to be “dissolved”. As to this the appellant relied, amongst other matters, on the falsity of the declarations made by the second respondent concerning its unsatisfied liabilities. The appellant submitted that deregistration constituted “egregious corporate misbehaviour and warrants reinstatement and an 5 Appellant’s written submissions dated 20 November 2023, [7]-[8]. 6 Cannane v J Cannane Pty Ltd (In Liq) (1998) 192 CLR 557, [12] (Brennan CJ and McHugh J); Marcolongo v Chen (2011) 242 CLR 546, [20] (French CJ, Gummow, Crennan and Bell JJ), [57] (Heydon J). 7 Fairfield Pastoral Holding Pty Ltd v Ridge Estate Pty Ltd (No 4) (2022) 398 ALR 203, [373] (White J). 8 Re Proserpine Pty Ltd [1990] 1 NSWLR 745; Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, [24] (Austin J). -- 7 of 18 -- [2024] SASCA 6 The Court 6 investigation of the affairs of the company, if necessary, by an independent liquidator”.9 28 In their reply submissions dated 24 November 2023, the respondents pointed to the absence of evidence to support the allegations of fact made by the appellant and that it was inappropriate to make allegations of fraud without an evidentiary basis or prior notice. The respondents went on to submit that the appellant had not addressed the absence of any director, and that none of the statutory and regulatory requirements that must be complied with before the Court orders the winding up of a company have been addressed. As the respondents put it: Section 532(9) of the Corporations Act 2001 (Cth) and rule 5.5 of the Corporations Rules 2003 (SA) require an applicant to file and serve a consent to act as liquidator. Section 465A of the Corporations Act 2001 (Cth), regulations 5.4.01A and 5.6.75 of the Corporations Regulations 2001 (Cth), and rule 5.6 of the Corporations Rules 2003 (SA) require a person who applies for a company to be wound up to lodge a notice in the prescribed form that the application has been made, serve a copy of that notice on the company, and cause a notice to be published in respect of the application. None of those requirements have been attended to. 29 The respondents also pointed to the absence of any evidence that ASIC had been notified or expressed any position concerning reinstatement, referring to authorities which suggest that, save in cases of urgency, the Court will not ordinarily order reinstatement without hearing from ASIC.10 30 The appellant sought leave to file further submissions in reply. For that purpose, very long written submissions were made on 8 December 2023. It is fair to describe these as essentially complaining that the appellant would ordinarily have been dux litus with a right of reply. And, otherwise, these long submissions simply rehearsed the submissions that had been made without identifying with any degree of precision the issues on which further submissions needed to be made. For example, in relation to the complaint that allegations of fraud had been made without any evidentiary basis and without prior notice, and that there was no evidence concerning notification of ASIC or of ASIC’s attitude, the appellant submitted as follows:11 The appellant disputes the correctness both at law and in fact as regards the above contentions made for the first time in respect of the reinstatement application, has not therefore previously had the opportunity to address the same, and accordingly wishes to be heard in respect thereof. 9 Relying upon Re Greenzan Pty Ltd (In Liq) (Deregistered) [2017] NSWSC 489 (Gleeson JA); Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688 (Austin J). 10 Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182, [9] (Barrett J). 11 Appellant’s written submissions dated 8 December 2023, [17]. -- 8 of 18 -- [2024] SASCA 6 The Court 7 31 It is not appropriate to provide any further opportunity for submissions where the precise issues to be addressed are unclear and where the application has failed to confront the difficulties earlier outlined in the preliminary observations. 32 Leave to adduce further submissions should be refused. Determination of the application for reinstatement 33 The appellant’s application has been made on the basis that there is a long history of dealings between the parties which it is relevant to consider. However, that history is not before this Court and it is not the subject of any evidence. It is not appropriate for this Court to embark on the fact-finding which the appellant’s application and submissions require. 34 Moreover, even if it is assumed that the deregistration was procured by false statements, the appellant did not explain why recovery from the insolvent first respondent company was thought to be efficacious, nor on what basis a liquidator might be in a position to call in assets or commence proceedings to assist with the recovery of the award and costs in a case where the second respondent director (or his estate) must meet these liabilities. 35 The premise of the appellant’s complaints, including the allegations of fraud, is that the second respondent director engaged in wrongdoing and deregistered the first respondent company for the purpose of hindering the appellant’s recovery. If that case were made out, a claim may well lie against the director, especially if the director transferred the assets of the company in the face of the appellant’s litigation against it. It is feasible that claims might also be made against those who knowingly received company assets. 36 Having said that, in connection with whether it is just to reinstate registration it might then be asked why it is necessary or at least helpful to have a liquidator of the first respondent take action against the director (including against the deceased director’s estate) as compared with the appellant simply pursuing the second respondent director’s deceased estate. The appellant did not explain why or how the appointment of a liquidator to the first respondent would put the appellant into any better position. For example, the appellant did not explain whether there were thought to be assets of the first respondent company that could only or more easily be pursued by a liquidator. 37 There may well be answers to considerations such as these, but they have not been addressed by the appellant. As has been pointed out, the appellant gave no indication at all that considerations such as these would be addressed if leave to make further written submissions were granted. 38 A number of the authorities relied upon by the appellant are in any event distinguishable. In the case of Australian Competition and Consumer Commission v Australian Securities and Investments Commission, Austin J outlined the relevant criteria to be considered in the exercise of the wide discretion on an application for -- 9 of 18 -- [2024] SASCA 6 The Court 8 reinstatement, which include the circumstances of deregistration, whether the company would be put to good use upon reinstatement, any likely prejudice to third parties and whether there was any public interest reason not to order reinstatement.12 39 Justice Austin explained that, typically, re-registration is usually invoked to permit a plaintiff to recover damages by bringing proceedings against a defunct company where the company’s liability or risk is covered by insurance and “the real defendant is the insurance company”. 13 His Honour had before him a case where the party seeking re-instatement had a public duty to improve competition and efficiency in markets and, for that purpose, it sought reinstatement of the company for the purposes of securing findings and pecuniary penalty orders under the former Trade Practices Act. 40 Whilst observing that a court ought not reinstate a company which, upon reinstatement, will be hopelessly insolvent,14 Austin J explained that proper arrangements might be made for the payment of the necessary filing fees and administration costs and that the reinstatement of an insolvent company may be appropriate in “special circumstances”.15 41 As for Greenzan, another case relied on by the appellant, the company had been wound up and a liquidator appointed. The company was then deregistered without ensuring that one of a number of properties was included in a transfer to another entity. The purpose of re-registration was therefore to enable the transfer of that particular property to be made, following which the company would again be deregistered. There was evidence that the liquidator consented to reappointment and that ASIC did not oppose the orders, including an order for reinstatement.16 42 Nonetheless, the difficulties addressed earlier in these reasons, such as the absence of evidence of notice to ASIC and of ASIC’s attitude,17 the absence of a winding-up application, and the absence of any proposal for addressing the death of the sole director,18 provide a sufficient basis for the dismissal of the application. 12 Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, [27] (Austin J), citing amongst others, Re Kilkenny Engineering Pty Ltd (In Liq) (1976) 13 SASR 258. See also Greenzan Pty Ltd (In Liq) (Deregistered) [2017] NSWSC 489 [8]-[13] (Gleeson JA) and Re Richmate Pty Ltd (In Liq) (Deregistered) [2015] NSWSC 2009, [6] (Black J). 13 Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, [22] (Austin J). 14 Citing Dennis v McMahon (1989) 7 ACL 283, 284. 15 Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, [58] (Austin J), citing Re Great Eastern Cleaning Services Pty Ltd (No 2) (1978) 3 ACLR 886, 887 (Needham J). 16 In the matter of Greenzan Pty Ltd (In Liq) (Deregistered) [2017] NSWSC 489 [12]-[13] (Gleeson JA). 17 Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182, [9] (Barrett J); Wyse and Young International Pty Ltd v Corrado [2015] NSWSC 1863, [42] (White J). 18 Re Amtrao Pty Ltd (1994) 13 ACSR 654, 655 (Young J); Wyse and Young International Pty Ltd v Corrado [2015] NSWSC 1863, [45]-[46] (White J). -- 10 of 18 -- [2024] SASCA 6 The Court 9 43 The application must be dismissed. 44 It will be a matter for the appellant whether a further application is made before a master where these and other various difficulties can be properly addressed with the benefit of such evidence as the appellant may choose to adduce. Whether there is scope for the appellant to make an alternative damages claim based on the repayment made in 2016 (appeal ground 2) 45 It will be recalled that the appellant failed on appeal in connection with the claim for the loss of the proprietary interest in the Woodville property which was transferred by the appellant and her husband to their grandson in September 2016. The proceeds from the transfer were supplied by the grandson and applied to discharge the 2008 Loan. The appellant failed to recover damages equivalent to the capital value of the Woodville property because it was transferred for less than its market value in connection with a “family arrangement” before the appellant’s husband died in 2017. As this Court explained:19 Whilst the respondents may have been responsible for the appellant incurring debts associated with the 2007 loan and the 2008 loan and ultimately the need to sell the Woodville property, they were not responsible for the appellant’s decision to sell for less than the market value. The loss of the market value of the proprietary interest was inextricably bound up in the family arrangement made between the appellant and her grandson. That arrangement was struck before the death of the appellant’s husband and, it would seem, regardless of any potential right of survivorship. It is far from clear that the full implications of this arrangement were made known to the trial judge. The appellant seeks to recover damages for one aspect of that arrangement without bringing to account all of the benefits obtained from it. Whether the issue is framed as one of causation or as a question of what is reasonable as between the appellant and the respondents in the assessment of damages, the respondents are not required to meet this claim. 46 The Court then addressed the way in which the appellant had framed her claim for relief in her pleadings before the May 2020 hearing. This was the first hearing at which the transfer of the Woodville property was addressed. Reference was made to the terms of the fifth statement of claim filed in February 2020. It was in that pleading that the appellant first claimed the loss of her proprietary interest in the Woodville property, but she retained a claim for damages for the full amount of the principal paid under the 2008 Loan.20 47 As this Court observed, counsel for the appellant did not address the pleadings or the alternative damages claim. The Court was concerned to hear from the parties as to whether there was any scope for a damages claim to be made based on the repayment made in 2016.21 48 In their written submissions, the respondents maintained that there was no scope to make any alternative damages claim if the claim for the loss of the 19 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [192]. 20 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [195], referring to paragraph 20.3.3 of the fifth statement of claim. 21 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [200]. -- 11 of 18 -- [2024] SASCA 6 The Court 10 survivorship interest in the Woodville property failed (appeal ground 2) for these reasons: 1. Following the disclosure of the transfer of the Woodville property to the trial judge, and the repayment of the 2008 Loan (around $314,000) in 2020, the only claim made was for the loss of proprietary interest in the Woodville property (around $700,000). 2. The appellant did not run an alternative case seeking damages for the amount of the 2008 Loan repayment, notwithstanding the broad terms in which paragraph 20.3.3 of the amended pleading was expressed. 3. The respondents endorsed the observation made by this Court that it was difficult to see how the appellant could claim both the loss of proprietary interest and the repayment made in 2016.22 4. It was submitted that there was no appeal against the finding that the transaction formed part of a family arrangement which had not been the subject of any evidence. After endorsing the observation made by this Court that it was far from clear that the full implications of the family arrangement had been made known to the trial judge, the respondents pointed to the absence of evidence from the appellant and her husband about these matters. The only evidence which was adduced came from the appellant’s grandson and this identified that the appellant continued to reside in the Woodville property. 5. The alternative damages claim about which the Court inquired was not the subject of any ground of appeal, nor was it the subject of any submissions made on appeal, whether written or oral. 6. The respondents submitted that it was inappropriate to embark upon what amounted to a trial on a new issue with a view to attempting to unravel aspects of the family arrangement where any new alternative claim “cannot be disentangled from the family transaction”. 49 For the appellant, detailed submissions were made about a number of historical, factual matters commencing with the arrival of the appellant and her husband to Australia in 1969. These detailed submissions traversed the history of the appellant’s domestic and working activities over the course of 50 years and included the following matters:23 32. At the time of transfer of the Woodville Property into the joint names of the Husband and the Appellant the Appellant had contributed to the assets of the Steve Merhi Family Trust through her 20-25 years of work at the Jerusalem Shishkebab restaurant (and likely her work before then), as well as through applying the inheritance funds 22 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [199]. 23 Written submissions of the appellant dated 20 November 2023, [32]-[33]. -- 12 of 18 -- [2024] SASCA 6 The Court 11 given to her by her family to pay off debts of Ballsam Pty Ltd in respect of its Hindley Street property acquisition in 1993. 33. In the alternative, as the transfer was made to the Appellant at the sole direction of the husband, any suggestion of a resulting trust to the husband (by reason of his initial sole purchase of the property in 1976) is rebutted by the above evidence,24 and by the presumption of advancement.25 The intervention of a voluntary transfer to Ballsam by the husband, and a subsequent voluntary transfer, at the sole direction of the husband, from Ballsam to the appellant and the husband jointly, does not exclude the operation of the presumption of advancement. 50 It will be recalled that Ballsam was a company incorporated by the appellant’s husband and the trustee of a family trust as well as the source of the loan funds with which the appellant’s grandson paid out the 2008 Loan.26 51 Although the appellant submitted that the alternative damages claim was “not new”,27 no attempt was made to point to any step taken by the appellant during the 2020 trial to litigate that alternative claim. The only matter relied on by the appellant was the way in which her case was framed before the 2020 trial in her pleadings and submissions. Despite reciting the terms of her appeal grounds, the appellant did not identify any ground which addressed any claim associated with the transfer in 2016 apart from the loss of her proprietary interest in the Woodville property.28 52 The appellant submitted that the appellant and her husband transferred the Woodville property to their grandson in consideration for him discharging the balance of the 2008 Loan debt, and that this extended to him obtaining reimbursement for the amounts he contributed towards the appellant’s mortgage repayments. 53 The appellant also submitted that she held a 50 per cent beneficial interest in the Woodville property and was, accordingly, entitled to 50 per cent of the proceeds of the 2016 sale. Finally, the appellant attacked the notion that it was necessary to understand or bring to account the benefits obtained by her under the family arrangement.29 54 The appellant put forward a hypothetical. On this hypothetical the appellant assumed that, following a sale at market value, she held the nett proceeds of sale of $530,000 and, following discharge of the 2008 Loan in the amount of $314,000, 24 Dowman’s case (1586) 77 ER 743, 747; Lady Bellasis v Compton (1863) 23 ER 790; Lamplugh v Lamplugh (1709) 24 ER 316; Vandervell v IRC [1967] 2 AC 291, 312-3; Campbell, J C, “The consequences of rebutting a presumption of advancement” [2018] USydLRS 2; (2018) 46:3 Australian Bar Review 229. 25 Calverley v Green (1984) 155 CLR 242, 247. 26 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [10]-[19], footnote 92. 27 Written submissions of the appellant dated 20 November 2023, [35]. 28 Written submissions of the appellant dated 20 November 2023, [39]. 29 Written submissions of the appellant dated 20 November 2023, [41]-[43]. -- 13 of 18 -- [2024] SASCA 6 The Court 12 she would then hold “her share of the balance” being 50 percent of $216,000, or $108,000. The appellant then submitted:30 Yet there is no basis upon which it could be contended that the appellant would have to bring to account the benefit of that amount ($108,000) in the off-set her [sic] lost payments. 55 The appellant went on to submit that it was irrelevant that it is now too late to attempt to unravel the family arrangement given there were extensive affidavits from the grandson on which he was cross-examined during the 2020 hearing. 56 It is unnecessary to address the reply submissions from the respondents in any detail, save for the answer offered in relation to the hypothetical. As to this, the respondents submitted:31 The issue is highlighted by the example postulated at [44] of the Appellant’s Submissions (notwithstanding that the market value figure adopted by the Appellant is materially understated and contrary to the admitted facts). At [44], the Appellant posits that if the Woodville Property was sold at market value, contended to be $550,000 with a net balance of $530,000, after discharging the mortgage, the Appellant would have received half of the surplus proceeds of $216,000, but that analysis is misconceived because it assumes that the Husband receives half of the surplus. Rather, If the property was sold with the net proceeds being $530,000, the Husband’s 50% interest would be $265,000, all of which would be applied to discharge the EZY mortgage for which he was liable. The Appellant would only have contributed $49,000 to the discharge of the EZY mortgage and would have retained the entirety of the $216,000 surplus. The Appellant’s “loss” in that scenario would be only $49,000 rather than the $157,159.56 claimed by the Appellant. In essence, the example at [44] of the Appellant’s Submissions purports to give the Husband a windfall in the form of surplus proceeds whilst inflating the Appellant’s loss to account for the difference. By not fully accounting for the benefits she received from the transfer of the property, the Appellant is, in the same manner, inflating her loss at the Second Respondent’s expense. 57 Again, the appellant sought leave to file further submissions in reply to the respondents’ written submissions. No proper reason to entertain any further submissions was advanced by the appellant. The critical issue on which the Court invited submissions was addressed by both parties in their initial written submissions. Leave to file further submissions should be refused. The determination of the scope to make an alternative damages claim 58 Having carefully considered the materials filed in the lead up to the 2020 hearing, together with the transcript of that hearing, it is clear that no claim was ever pressed by the appellant in relation to the repayment made in 2016 at the trial in 2020. Despite the broad terms of the appellant’s pleading, her case was conducted on a narrow basis. The only claim that was made by the appellant, and the only claim pressed on appeal, concerned the loss of the proprietary interest in the Woodville property. 30 Written submissions of the appellant dated 20 November 2023, [44]. 31 Second respondent’s reply submissions dated 24 November 2023, [12.3]. -- 14 of 18 -- [2024] SASCA 6 The Court 13 59 In these circumstances it is not now open to the appellant to pursue a new, alternative damages claim. It would be unjust to permit the appellant to do so. 60 The conduct of the May 2020 hearing and the evidence led during it was directed to the claim concerning the loss of the proprietary interest, not any alternative claim for damages based on the 2008 Loan repayment. 61 Even if the appellant had conducted the case in a way which left it open to pursue the alternative damages claim, it is too late to attempt to disentangle that claim from the family arrangement referred to in the reasons of this Court when rejecting the claim for the loss of the proprietary interest in the Woodville property.32 The likelihood is that further evidence would be required if this issue was to be determined by this Court. 62 It was for the appellant to lay a proper factual foundation for any claim which she might pursue, and that would include the basis upon which she had agreed to transfer the property and what was to be done with any proceeds from transfer. One may surmise, though the evidence is far from clear, that an essential element of the family arrangement included the appellant’s entitlement to remain living with her grandson in the Woodville property without having to pay, at the least, rent.33 The evidence led by the appellant in that 2020 hearing was confined to evidence from the appellant’s grandson and it did not descend into exposure of the precise terms of the family arrangement. 63 Though the evidence is indistinct, it would seem that the dealings between the appellant’s husband and grandson extended beyond arrangements over the Woodville property and included Ballsam, from whom the grandson borrowed money to repay the 2008 Loan. The terms of the grandson’s loan arrangement with Ballsam were not revealed during the May 2020 hearing and there was a dearth of records.34 Having not exposed the precise terms of these arrangements, the appellant cannot now complain if it is not possible for this Court to address a claim of this kind because the requisite evidence has not been led and the necessary factual findings have not been made. 64 The proper conclusion is that, as with the loss of the proprietary interest in the Woodville property, any claim based on the repayment made in respect of the balance of the 2008 Loan remains inextricably bound up with the family arrangement. 65 For these additional reasons, it would be unjust to allow a new claim to be made where the appellant determined not to expose the terms of that family 32 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [190]-[208]. 33 Ramadan v ACN 098 408 176 Pty Ltd [2023] SASCA 91, [182]-[190]. 34 See, for example, Transcript of Proceedings, Ramadan v ACN 098 408 176 Pty Ltd (Supreme Court of South Australia, Judge Dart, 14 May 2020), the grandson’s evidence in chief, T12-15, there was no list of payments because “it’s a family transaction kind of thing”; and in cross-examination, T40-44, T49, “we’re a family. The way we’ve always conducted our business between ourselves. We never document everything… It’s not a business transaction.” -- 15 of 18 -- [2024] SASCA 6 The Court 14 arrangement for the benefit and evaluation of the trial judge and where further evidence may be required from the appellant and findings may need to be made. 66 Appeal ground 2 must be dismissed. The question of costs, including of the appeal and the cross-appeal 67 It is now clear that the appellant succeeded with only one of her two principal grounds advanced at the hearing of the appeal. In addition, the appellant has failed with respect to the attempt to agitate an alternative damages claim based on the repayment of the 2008 Loan. The appellant has also failed on her application for an order that ASIC reinstate the registration of the first respondent. 68 In addition, there is an application that the appellant pay the costs thrown away by reason of the adjournment of the initial hearing of this appeal which had been listed for half a day on 9 December 2021. It will be necessary to return to that issue. 69 So far as the respondents are concerned, they have succeeded in respect of one of the two appeal grounds. They have also succeeded in opposing the appellant’s attempt to agitate an alternative damages claim based on the repayment of the 2008 Loan. The respondents succeeded in obtaining an extension of time in which to pursue their cross-appeal.35 However, they failed on both of their grounds of cross-appeal. The respondents succeeded in opposing the application for an order that ASIC reinstate the registration of the first respondent. 70 It is necessary to address the circumstances of the abandonment of the initial hearing before this Court. 71 The hearing of the appeal was listed for 9 December 2021 for half a day with the consent of both parties. After the matter was set down for hearing, the cross-appeal was filed on 28 September 2021. It was only at the hearing of the appeal on 9 December 2021 that senior counsel for the appellant advised the Court that the allocation of half a day was insufficient. The respondent was told that the appellant considered a full day was necessary only moments before the hearing. It was not possible for the Court or senior counsel to accommodate a hearing proximate to the listed date. 72 It was in those circumstances that this Court reluctantly adjourned the matter to a hearing some months later. No adequate explanation has been given by the appellant for why the inability to proceed on 9 December 2021 was only raised on the day of the hearing. 73 Even assuming that the cross-appeal raised additional issues beyond those apparent at the time the matter was set down, that should have been apparent well before 9 December and raised by the appellant with the respondents and the Court, 35 Despite initial opposition, the appellant did not ultimately oppose the grant of an extension of time at the hearing on 9 December 2021. -- 16 of 18 -- [2024] SASCA 6 The Court 15 thereby avoiding wasted time and costs. Any need to adjourn that hearing ought to have been notified much earlier than on the day of the hearing. 74 Though the cross-appeal raised additional issues which ultimately failed, the wasted preparation time and loss of the hearing date (with the resulting need for further preparation for a subsequent hearing) are matters which should be brought to account separately from the fate of the cross-appeal. 75 The appellant must pay the costs thrown away by reason of the need to adjourn the 9 December 2021 appeal hearing. 76 The appellant contends that most of the time ultimately taken on the appeal was occupied with the cross-appeal. That submission should be rejected. The appeal and the cross-appeal raised issues that were, broadly, comparable concerning their time and complexity. 77 Both parties sought the opportunity to put further submissions when the outcome of the alternative damages claim made in respect of the 2008 Loan was known. 78 Whilst the Court will provide the parties with that opportunity, as presently disposed, the Court is minded to address costs in a compendious manner. That is, by taking into account in a broad way the respective success and failure of each side on each of the main issues agitated, together with the costs thrown away. 79 That will be achieved by the making of an order concerning the costs of the appeal and the cross-appeal that reflects that at the hearing there were four issues in contention. The appellant succeeded in relation to three and failed in relation to one. However, the appellant also failed in relation to the issue she raised concerning the alternative damages claim based on the repayment of the 2008 Loan. Importantly, the appellant must also pay the costs thrown away by reason of the adjournment on 9 December 2021. 80 Though the respondents’ written submissions conceded that the appellant should have 70 per cent of her costs of the appeal,36 which presumably included her costs of the cross-appeal, it is appropriate to bring to account the costs thrown away when addressing the costs of appellant’s appeal and the respondents’ cross-appeal rather than separately dealing with the costs thrown away. 81 Subject to any further submissions, the Court is minded to making the following orders: 1. The respondents must pay one half of the appellant’s costs of her appeal and the respondents’ cross-appeal. 36 Respondents’ written submissions dated 18 October 2023. -- 17 of 18 -- [2024] SASCA 6 The Court 16 2. The appellant must pay the respondents’ costs of the application to order that ASIC reinstate the registration of the first respondent. 82 The Court will require the parties to confer regarding the final form of the orders and the amount of the appellant’s judgment, including any allowance for interest. Whilst one week should be sufficient, the parties have liberty to apply if more time is reasonably required. The orders of the Court 83 The Court orders: 1. The name of the appellant will be amended to the name of the appellant’s personal representative. 2. Appeal ground 2 is dismissed. 3. The appellant’s application for an order that ASIC reinstate the registration of the first respondent is dismissed. 4. The parties are directed to confer and agree the calculation of interest, provide further submissions on costs (if any) and advise the terms upon which orders may be entered by this Court in the form of draft minutes of order by 4.00 pm on Friday, 9 February 2024. 5. Liberty to apply. -- 18 of 18 --