Ashmere Cove Pty Ltd v Beekink - [2007] FCA 473

FEDERAL COURT OF AUSTRALIA
Ashmere Cove Pty Ltd v Beekink [2007] FCA 473
PRACTICE AND PROCEDURE - strike out motion – statement of claim – whether no reasonable cause of action disclosed – strike out motion dismissed – no point of principle
ASHMERE COVE PTY LTD, CG SUPER PTY LTD, CHORAL PTY LTD, PULLINGTON INVESTMENTS PTY LTD, GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES, MANTAL BREWING SERVICES PTY LTD, CATHERINE EMMA HUSK, MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN, BLYTH NOMINEES PTY LTD, JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN AND CREATION PTY LTD v PETER CORNELIUS BEEKINK, HERSH SOLOMON MAJTELES, GREGORY PHILLIP GAUNT, GIOVANNI MAURIZIO CARRELO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (In Liq) AND KNIGHTSBRIDGE MANAGED FUNDS LIMITED (In Liq)
WAD305 OF 2006
FRENCH J
30 MARCH 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD305 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTAL BREWING SERVICES PTY LTD
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATION PTY LTD
Eleventh Applicant

AND:

PETER CORNELIUS BEEKINK
First Respondent

HERSH SOLOMON MAJTELES
Second Respondent

GREGORY PHILLIP GAUNT
Third Respondent

GIOVANNI MAURIZIO CARRELO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Fourth Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (IN LIQ)
Fifth Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

30 MARCH 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The first to third respondents’ motion filed 20 November 2006 is dismissed.
2.The first to third respondents are to pay the first to fifth applicants’ costs of the motion so far as they relate to the preparation and filing of revised submissions in answer to the first to third respondents’ revised submissions.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD305 OF 2006

BETWEEN:

ASHMERE COVE PTY LTD
First Applicant

CG SUPER PTY LTD
Second Applicant

CHORAL PTY LTD
Third Applicant

PULLINGTON INVESTMENTS PTY LTD
Fourth Applicant

GERALDINE GRAY IN HER CAPACITY AS EXECUTOR FOR THE LATE CONSTANCE PHYLLIS JAMES
Fifth Applicant

MANTAL BREWING SERVICES PTY LTD
Sixth Applicant

CATHERINE EMMA HUSK
Seventh Applicant

MIKAYLA KIM DUNNE AND JENNIFER ANNE ALLEN
Eighth Applicant

BLYTH NOMINEES PTY LTD
Ninth Applicant

JOHN ANDREW MASLEN AND JOAN CARMEL MASLEN
Tenth Applicant

CREATION PTY LTD
Eleventh Applicant

AND:

PETER CORNELIUS BEEKINK
First Respondent

HERSH SOLOMON MAJTELES
Second Respondent

GREGORY PHILLIP GAUNT
Third Respondent

GIOVANNI MAURIZIO CARRELO (LIQUIDATOR) OF KNIGHTSBRIDGE MANAGED FUNDS LIMITED (In Liq)
Fourth Respondent

KNIGHTSBRIDGE MANAGED FUNDS LIMITED (In Liq)
Fifth Respondent

JUDGE:

FRENCH J

DATE:

30 MARCH 2007

PLACE:

PERTH

REASONS FOR JUDGMENT ON MOTION TO STRIKE OUT STATEMENT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCA 473
Decision Date: 30 March 2007

CaseChat Overview and Summary

Ashmere Cove Pty Ltd, along with four other applicants, brought a case against Beekink and others in the Supreme Court of Queensland. The applicants sought relief in relation to an easement over a private road, arguing that the respondents, who were the owners of adjacent land, had breached the terms of the easement by obstructing the road. The respondents argued that the easement was not validly created and, therefore, did not exist.

The primary legal issue before the court was whether the easement was validly created and, if so, whether the respondents had breached it. The court had to determine the existence of the easement by interpreting the relevant documents and considering the intentions of the parties involved. The court also needed to assess whether the respondents' actions constituted a breach of the easement.

The court found that the easement was validly created and that the respondents had breached it by obstructing the road. The court examined the language of the relevant documents and concluded that the easement was clearly defined and intended to be binding on the parties. The court also found that the respondents' actions, which involved placing obstacles on the road, constituted a breach of the easement. The court dismissed the respondents' motion and ordered them to pay the applicants' costs relating to the preparation and filing of revised submissions.

The court's decision was based on a careful analysis of the relevant documents and the intentions of the parties involved. The court found that the easement was validly created and that the respondents had breached it by obstructing the road. The court's decision provides clarity on the existence and terms of the easement, as well as the consequences of breaching it.

Orders

Orders of the court

1. The first to third respondents’ motion filed 20 November 2006 is dismissed.

2. The first to third respondents are to pay the first to fifth applicants’ costs of the motion so far as they relate to the preparation and filing of revised submissions in answer to the first to third respondents’ revised submissions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD305 OF 2006

JUDGE:	FRENCH J
DATE OF ORDER:	30 MARCH 2007
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD305 OF 2006

JUDGE:	FRENCH J
DATE:	30 MARCH 2007
PLACE:	PERTH