PAUL-STEVEN ATKINS v THE STATE OF SOUTH AUSTRALIA [2023] SASCA 140

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DART) CIV-23- 000032 Applicant: PAUL-STEVEN ATKINS Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR P LEESON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: On the papers File No/s: CIV-23-010821 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. ATKINS v THE STATE OF SOUTH AUSTRALIA [2023] SASCA 140 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Bleby) 20 December 2023 REAL PROPERTY - TORRENS TITLE - REGISTRATION - EFFECT OF REGISTRATION APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES On 12 May 2011, the respondent as lessee entered into a lease with the applicant over a property. The lease commenced on 14 May 2011. Upon exercise of the right of renewal, the lease was extended until 13 May 2021. Thereafter, the leasehold arrangement was a monthly tenancy. On 29 September 2021, the applicant, as sole proprietor, transferred the freehold reversionary interest in the property to his wife. The lease with the respondent ultimately came to an end in April 2022. On 31 May 2022, the applicant filed a claim in the District Court for various losses allegedly suffered by him relating to the leasehold interest. The respondent applied for the claim to be struck out and for summary judgment. On 17 October 2022, a master of the District Court granted summary judgment in respect of a substantial portion of the claim. He held that the applicant did not hold the status of lessor following the transfer of the property into his wife’s name. The applicant appealed. The single judge of the District Court dismissed that appeal with both parties’ consent. The applicant applied for leave to appeal. Broadly, his complaints were that: 1. the applicant and his wife made a mutual rescission and release agreement (‘MRRA’) to void the transfer of the property; 2. even in the absence of the MRRA, the transfer of property was void as no consideration was able to be paid; and -- 1 of 10 -- 3. the judge’s decision was not supported by the facts of the case. The MRRA provided that it was entered into and made effective as at 11 April 2022, but expressed to be signed on 18 November 2022. Held (by the Court), refusing leave to appeal and ordering the applicant to pay the respondent’s costs of the application: 1. As the title of the applicant’s wife to the property is indefeasible by registration, consideration of the MRRA by the judge would not have had any material bearing on the validity of the transfer and the corresponding legal ownership of the property. 2. There was no reasonable basis on which the single judge on appeal should have considered the MRRA, even if the applicant had applied to tender it as fresh evidence. 3. It is not necessary to consider any other issue raised in the Notice of Appeal. 4. The decision of the single judge on appeal does not warrant reconsideration on appeal. 5. None of the applicant’s complaints raises any issue of general principle or importance. 6. The applicant consented to the dismissal of the appeal before the single judge. A grant of leave to appeal would be futile. Retail and Commercial Leases Act 1995 (SA); Uniform Civil Rules 2020 (SA) r 217.10(1)(c); Real Property Act 1886 (SA) s 69; Disability Discrimination Act 1992 (Cth); Limitation of Actions Act 1936 (SA), referred to. Viscariello v Livesey [2013] SASC 99; Wang v Gelnar Pty Ltd [2023] SASC 43; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Rankine v The State of South Australia [2022] SASCA 18, considered. -- 2 of 10 -- ATKINS v THE STATE OF SOUTH AUSTRALIA [2023] SASCA 140 Court of Appeal – Civil: Livesey P and Bleby JA 1 THE COURT: This is an application for leave to appeal against the orders of a single judge of the District Court. Those orders dismissed an appeal challenging a decision of a master of the District Court, granting the respondent summary judgment in respect of portions of the applicant’s claim. The applicant now seeks leave to appeal against that decision. For the reasons that follow, we refuse leave to appeal. Factual Background 2 On 12 May 2011, the respondent as lessee entered into a lease with the applicant, Mr Atkins, over a property in Coober Pedy. The lease commenced on 14 May 2011 with an expiry date of 13 May 2018. In 2018, the respondent exercised its right of renewal. This resulted in the lease being extended until 13 May 2021. After this date, the leasehold arrangement was a monthly tenancy. 3 On 29 September 2021, the applicant, as sole proprietor, transferred the freehold reversionary interest in the property to his wife, Regina Mikhailovna Atkins (‘Mrs Atkins’) as sole registered proprietor.1 The lease ultimately came to an end in April 2022. Procedural History 4 On 31 May 2022, Mr Atkins filed a claim in the District Court for various losses allegedly suffered by him relating to the leasehold interest, including: • losses in relation to the state of the property when it was returned to him;2 • losses associated with the renewal of the lease, the manner in which the renewal was executed and the possible application of the Retail and Commercial Leases Act 1995 (SA) to the lease agreement;3 • ‘emotional & financial extreme stress, leading to bankruptcy, massive default charges / fees, including legal costs, repossession’.4 Mr Atkins sought relief totalling $3,986,166.00.5 5 The respondent applied for the claim to be struck out and for summary judgment. On 17 October 2022, the master granted summary judgment in respect of a substantial portion of the claim.6 He held that the applicant did not hold the 1 Certificate of Title of the property as at 5 October 2021. 2 Statement of Claim dated 31 May 2022 (FDN 1) at [21.2]-[21.9], [21.22], [36]. 3 Statement of Claim dated 31 May 2022 (FDN 1) at [29]-[35]. 4 Statement of Claim dated 31 May 2022 (FDN 1) at [21.20], [39]. 5 Statement of Claim dated 31 May 2022 (FDN 1). 6 See Ex Tempore reasons of Master Blumberg of 17 October 2022. -- 3 of 10 -- [2023] SASCA 140 The Court 2 status of lessor following the transfer of the property into his wife’s name on 29 September 2021. It followed that there was no reasonable basis for a claim relating to covenants that touched and concerned the land.7 6 The applicant appealed. The single judge dismissed that appeal on 16 May 2023 with the consent of both parties. Notwithstanding that the applicant consented to the dismissal, he now seeks leave to appeal. Grounds of appeal and the judge’s findings 7 Mr Atkins is self-represented on this application, as he was in the underlying proceedings. The Notice of Appeal filed is not drafted in conventional legal terms. The 12 grounds of appeal contain numerous sub-grounds, together with observations by Mr Atkins about the procedural history of the matter, the ‘lease timeline’ and arguments addressing whether a contract can ‘be rendered null and void by mutual agreement’. 8 Mr Atkins also complains in respect of a separate matter that was before a different master and which is not the subject of this appeal. That claim concerned an application brought by Mr Atkins to have the transfer of the property to his wife declared void ab initio. The purported claim was dismissed by the master on the basis that it was an abuse of the Court’s processes.8 9 The grounds of appeal are long, discursive and argumentative. The primary contention that can be discerned is, broadly, that on 11 April 2022, Mr Atkins and his wife made a mutual rescission and release agreement (the ‘MRRA’) to void the transfer of the property. The MRRA provides that it was entered into and made effective as at 11 April 2022. It is expressed to be signed on 18 November 2022. Mr Atkins also contended that the transfer of the property was void, even in the absence of the MRRA, as no consideration was able to be paid. Mr Atkins consequently contended that the judge’s decision was not supported by the ‘facts of the case’. 10 The MRRA contains the following provisions: • ‘Only the property itself is to be transferred to The Prima Family Trust registered trustee Ms. Regina Mikhailovna Atkins and not the lease agreement with The State of SA’; • ‘The consideration in this [MRRA] is that [Paul Steven] Atkins is to [retain] full 100% ownership of the terms and condition of the lease attached to the building address as LESSOR’; and • ‘is entered into and made effective as at April 11 2022 verbally but signed 18 November 2022’. 7 Ex Tempore reasons of Master Blumberg of 17 October 2022 at [28], [56]. 8 Reasons for Decision of District Court Master Olsson of 2 May 2023 at [31]. -- 4 of 10 -- [2023] SASCA 140 The Court 3 11 The transfer the MRRA purports to rescind what was formally registered at the Lands Titles Office on 29 September 2021. The MRRA was not before the master in the proceedings heard on 17 October 2022 because it did not then exist. At the first directions hearing on 2 August 2022, the master explained to Mr Atkins that he may not have standing to pursue the claim. The master suggested that Mr Atkins should join his wife as co-applicant. Mr Atkins did not do this. 12 The MRRA was not signed and witnessed until after the master provided his written reasons of 17 October 2022. Those reasons explained that ‘the applicant’s claims depend on him having the status of a lessor’9 and that ‘the legal interest in the land is with the applicant’s wife’.10 13 Mr Atkins filed a Notice of Appeal against that decision on 4 January 2023. At a hearing before the single judge, the judge put to Mr Atkins that the correct applicant was the person with the legal interest in the property. The judge proposed to dismiss the appeal and allow Mr Atkins time to join his wife to the proceedings in the District Court. Mr Atkins expressly agreed to the dismissal of the appeal: His Honour: Now, when the registered proprietor changes, there is effected a change in lessor and the new proprietor becomes the lessor. And that’s all that Master Blumberg’s really saying, is that, because you are no longer the registered proprietor, you don’t have standing to pursue a breach of the lease; your wife does. Mr Atkins: So he’s not saying we don’t have a case, he’s just saying that Regina Atkins had to front up – His Honour: He’s saying that you don’t have a case, your wife would have a case, and it’s not out of time… So one thing you could have done was join your wife as a co-plaintiff in the District Court. Mr Atkins: Can I respectfully ask the judge for your discretion to allow me to do that? His Honour: You don’t need – this is sort of unusual because, usually, when we’re dealing with summary judgment, the whole claim goes… … His Honour: … So I’m going to dismiss the appeal. I’m going to make an order about you filing an application in 14 days. Mr Atkins: Yes, sir. … His Honour: … Well, in a sense, as the case probably is, after Master Blumberg’s work, that’s probably the only issue left. That you want to join your 9 Ex Tempore reasons of Master Blumberg of 17 October 2022 at [28]. 10 Ex Tempore reasons of Master Blumberg of 17 October 2022 at [64]. -- 5 of 10 -- [2023] SASCA 140 The Court 4 wife so you can agitate the issue of whether there was an extension of lease agreed. Okay? Mr Atkins: Yes. His Honour: All right, so, appeal dismissed. 14 Mr Atkins then made an application to join Mrs Atkins as co-applicant in the District Court proceedings. At a hearing on 22 June 2023, the master explained to Mrs Atkins that being a litigant entails certain responsibilities. At a subsequent hearing on 4 September 2023, Mrs Atkins, while under oath, eschewed participation in the proceedings. Mr Atkins then filed the Notice of Appeal in this Court. 15 The difficulty with Mr Atkins’s contention that the judge ‘was armed with the wrong information’ and that the ‘facts of the case and / or evidence introduced in the appeal court do not support the judge’s decision’, is that Mr Atkins did not seek to adduce evidence of the MRRA at the hearing of the appeal or even to refer to it. 16 Mr Atkins did refer to a ‘rescission’ in the context of discussing his legal interest in the property. His Honour: … the person with the legal interest is the correct applicant, and so – but do you say you’ve now transferred the land back to yourself? Mr Atkins: Yes, because it’s been rescinded. His Honour: When did that happen? Mr Atkins: When it was rescinded? His Honour: No, no, the Torrens system is title by registration so you were the registered proprietor on the title. Mr Atkins: Yes. His Honour: And in September, I think it was, 2021, you effected a transfer of the land from yourself to your wife – Mr Atkins: To the family trust but my wife had to hold it in her name, yes. His Honour: … but your wife became proprietor. The point of what Master Blumberg said is, because you are no longer the registered proprietor, you no longer have standing to pursue alleged breaches of the lease, because you have no interest any more in the land. -- 6 of 10 -- [2023] SASCA 140 The Court 5 17 If Mr Atkins had intended the MRRA to be considered by the judge on the appeal, it would have been necessary for him to seek leave to lead fresh evidence.11 He did not. 18 As to whether the judge erred by failing to consider the ‘rescission’, there are several factors relevant to whether to exercise its discretion to hear further evidence.12 The relevant principles are well understood:13 • The discretion is to be exercised in the context that the substantive issue before the Court is whether the decision of the Tribunal as to the appellant’s standing involved error. The context is not one involving a person’s liberty… • The circumstance that this Court is concerned with the existence or otherwise of error suggests that the further evidence must be capable of having a material bearing on that question, although it need not be decisive. • The discretion is not so wide that the Court may receive further evidence merely because it is useful. • The ability or otherwise of the appellant to have obtained the evidence for use at first instance, and any explanation for him not having done so, are important considerations. Ordinarily, further evidence is not received in order to allow a party to patch up deficiencies in its case if those deficiencies could have been addressed by the exercise of ordinary diligence at first instance. • The public interest in the finality of litigation is an important consideration. (Emphasis in original) 19 In Wang v Gelnar Pty Ltd14 Stanley J observed that with the exercise of reasonable diligence, the appellant could have obtained the evidence for use at the trial which was sought to be led on the appeal. The failure to do so was the result of the appellant’s deliberate forensic decision.15 Stanley J also found that the further evidence the appellant sought to lead was inconsistent with the case he ran at trial.16 20 The substantive issue before the single judge on appeal in the present case was whether the master’s reasoning in respect of Mr Atkins’s standing to pursue the claim involved error. However, the impact of the registered transfer of the property was canvassed well before the argument on 17 October 2022.17 There is no error in the master’s finding that Mr Atkins lacked standing due to the transfer of the freehold interest. 11 Uniform Civil Rules 2020 (SA) r 217.10(1)(c). 12 See Viscariello v Livesey [2013] SASC 99; Wang v Gelnar Pty Ltd [2023] SASC 43. 13 Viscariello v Livesey [2013] SASC 99 at [132]. 14 [2023] SASC 43. 15 Wang v Gelnar Pty Ltd [2023] SASC 43 at [16]. 16 Wang v Gelnar Pty Ltd [2023] SASC 43 at [20]. 17 Ex Tempore reasons of Master Blumberg of 17 October 2022 at [21]. -- 7 of 10 -- [2023] SASCA 140 The Court 6 21 The only relevant question before the single judge was whether Mr Atkins had standing to bring the original claim. However, even if the 2021 transfer of the property to Mrs Atkins was capable of being impugned as alleged by Mr Atkins, Mrs Atkins’s title is indefeasible. Title was registered on 29 September 2021.18 Consideration of the MRRA by the judge would not have had any material bearing on the validity of the transfer and the corresponding legal ownership of the property. 22 We note that the MRRA contained a provision that it was ‘made effective as at April 11 2022 verbally’. Mr Atkins failed to adduce evidence of any such verbal agreement before the master. However, that would not have assisted in any event. The claim concerned the alleged breach of obligations arising under a lease over property of which Mrs Atkins was the registered proprietor. There was no reasonable basis on which the single judge on appeal should have considered the MRRA, even if Mr Atkins had applied to tender it as fresh evidence. 23 Mr Atkins further sought to argue that the 2021 transfer was in the nature of a trust, such that his wife was the trustee and he the beneficiary.19 He also contended that he leased the property from his wife after September 2021. The master rejected these arguments. Mr Atkins has not identified any basis for suggesting that the master here erred. In any event, the MRRA records that only the property itself is to be transferred to Mrs Atkins and not the lease agreement. 24 Mr Atkins explained before the single judge on appeal that he had applied for a change in ownership in respect of the property, effecting a transfer of part ownership to him as joint registered proprietor. However, the judge put to Mr Atkins that his wife would still be required to be joined to the underlying action: His Honour: … I think what Mr Blumberg has done is technically correct, but it can be possibly repaired from your point of view by simply joining your wife as the correct plaintiff. But just tell me, you were saying – that’s not going to solve the problem if you become registered proprietor again. So if you lodged – I think in your submissions you said, at least six or eight weeks ago, Mrs Atkins was still the registered proprietor. … Counsel: Mrs Atkins remains the registered proprietor. However, in the notations on the title, an unregistered dealing that’s listed as a transfer dated 10 May of this year is listed. I’m not certain whether that is a transfer to Mr Atkins. His Honour: Okay. So Mr Atkins… Did you lodge something at the LTO last week? Mr Atkins: The conveyancer probably did, yes. Yes, we arranged him to do that. 18 See Real Property Act 1886 (SA) s 69. 19 Affidavit of Paul-Steven Atkins of 22 August 2022 (FDN 10) [1], [4]. -- 8 of 10 -- [2023] SASCA 140 The Court 7 His Honour: What is the effect of that, is that making you the registered proprietor again? Mr Atkins: No, part. His Honour: Jointly, with your wife? Mr Atkins: Yes, yes. We are jointly owned – His Honour: No, no, I understand that. So that would mean you still need to make an application to join your wife because, when you’ve got joint proprietors, you should act jointly I would have thought. Mr Atkins: Thank you. 25 There was no reason for the judge to undertake any further consideration of Mr Atkins’s standing. His Honour made clear to Mr Atkins that his wife needed to be joined to any claim in respect of a breach of the lease agreement. 26 Furthermore, the appeal was dismissed with the consent of both parties. There is a well-understood public interest in the finality of litigation.20 Leave to appeal 27 As with the Notice of Appeal, Mr Atkins’s submissions in respect of leave to appeal are not described in conventional legal terms. He makes complaints that do not appear to be directly referable to the judgment under appeal. Neither do they directly address the question of why leave should be granted. 28 Mr Atkins’s grounds in support of leave to appeal are presented as three set ‘elements’. The first relates to the procedural history of the matter. He complained that Mrs Atkins does not own the property by law, and that the single judge’s direction to join Mrs Atkins as a co-applicant in the District Court proceedings was ineffective, based on the findings of the master at a subsequent hearing. 29 The second ‘element’ comprises Mr Atkins’s reasons for requesting leave to appeal. He identified factors relating to his health including ‘severe whiplash’, and his aphasia. He submitted that his aphasia means he has a disability pension status and cited in support of this the Disability Discrimination Act 1992 (Cth) as well as the Limitation of Actions Act 1936 (SA). He also referred to a desire for ‘natural justice’. 30 In respect of Mr Atkins’s grounds for seeking an extension of time, Mr Atkins complained again of his aphasia and corresponding disability status. 31 The third ‘element’ relates to the ownership of the property. Mr Atkins referred to matters not related to the subject matter of this appeal. 20 Viscariello v Livesey [2013] SASC 99 at [132]. -- 9 of 10 -- [2023] SASCA 140 The Court 8 32 The Court looks to the following considerations on the question of whether to grant leave to appeal:21 a) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; b) whether the decision raises an issue of general principle or importance; and c) whether allowing the decision to stand would work a substantial injustice to the applicant. 33 The paramount consideration for the Court in considering whether to grant permission is whether the interests of justice require it.22 34 For the reasons set out above, the decision of the single judge on appeal does not warrant reconsideration on appeal. It is not necessary for this Court to consider the MRRA. That document manifestly has no material bearing on the issue of whether Mr Atkins has standing to bring the claim. It is not necessary to consider any other issue raised in Mr Atkins’s Notice of Appeal. The registered title of Mrs Atkins in the property places an insurmountable obstacle in Mr Atkins’s way. In any event, none of the other complaints raises any issue of general principle or importance. 35 There is no reason to doubt the correctness of the decision of the single judge on appeal. There was no evidence before the master, nor was there any evidence before the single judge on appeal, capable of supporting the contention that Mr Atkins had standing to bring the claim. In any event, as already noted, Mr Atkins consented to the dismissal of the appeal before the single judge. A grant of leave to appeal would be futile. Conclusion 36 We refuse leave to appeal. 37 The applicant is to pay the respondent’s costs of the application in the amount of $1,500. 21 See, e.g., Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [53]. 22 See, e.g., Rankine v The State of South Australia [2022] SASCA 18 at [3] (Livesey P, Lovell and Doyle JJA). -- 10 of 10 --