Court of Appeal confirms councils may obtain an order to take possession of land for unpaid rates

In the recent decision of Nash v the Corporation of the City of Marion & Bromilow (interested party) [2022] SASCA 95, the Court of Appeal of the Supreme Court of South Australia (Court of Appeal) has refused leave for appeal and upheld its decision that local government councils can apply for possession orders to facilitate the sale of land for non-payment of rates.

In a previous article, we discussed Judge Dart’s decision in The Corporation of the City of Marion v Nash [2022] SASC 29 in which His Honour held there is an implied power in the Local Government Act 1999 (SA) (LG Act) to take possession of land to facilitate its sale under section 184 of the LG Act.

Mr Nash appealed that decision to the Court of Appeal on nine different grounds, essentially asserting that Judge Dart was biased and that Mr Nash was entitled to a ‘stay’ (i.e. suspension) of the possession order because he had applied for a remission and postponement of rates in accordance with a City of Marion (Council) policy.

The Court of Appeal dismissed Mr Nash’s appeal as he had failed to put forward any argument to support his grounds of appeal. The Court of Appeal held that while Mr Nash may be entitled to the benefit of Council policies to postpone or otherwise strike a commercial arrangement for the payment of his unpaid rates, that policy was exercised at the complete discretion of the Council and therefore did not constitute a reason to stay the possession order.

Accordingly, the ability to obtain a possession order remains another tool in the arsenal of a local government council to recover unpaid rates. We always encourage any council contemplating sale of land for non-payment of rates to seek legal advice. Norman Waterhouse has significant experience in advising councils on all debt recovery options, up to and including all stages of the process for sale of land for non-payment rates.

Should you have any queries in relation to this article, please contact Felice D’Agostino on +61 8 8210 1202 or fdagostino@normans.com.au or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au.