Austcorp International Limited v Owers - [2009] FCA 774

FEDERAL COURT OF AUSTRALIA
Austcorp International Limited v Owers [2009] FCA 774
APPEAL – application for leave to appeal from a decision of a single judge which determined three out of 48 cases propounded in the one proceeding by means of a single Application and a single Statement of Claim – in substance, orders made below were final – leave to appeal not necessary but granted in any event – time within which to appeal as of right extended
PRACTICE AND PROCEDURE – observations as to the desirability of dealing with 48 separate cases in one proceeding without utilising Pt IVA of the Federal Court of Australia Act 1976 (Cth) or O 6 r 2 of the Federal Court Rules – three “test cases” decided – appeal from orders made in those cases – whether parties to the extant remaining cases should be made parties to the appeal from the orders made in respect of the three “test cases” – application for the joinder of the remaining parties refused
Federal Court of Australia Act 1976 (Cth), s 24, s 25 and Pt IVA
Federal Court Rules, O 6 r 2, O 29 r 2, O 52 rr 10 and 15
Ackers v Austcorp International Ltd [2009] FCA 432 related
Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 followed
Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 cited
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 followed
Radstock Co-Operative & Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605, [1968] 2 All ER 59, [1968] 2 WLR 1214 cited
Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 followed
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 followed
AUSTCORP INTERNATIONAL LIMITED (ACN 003 132 090) v BRIAN STEPHEN OWERS and SEAR TAN-BOUNKEUA
NSD 506 of 2009
FOSTER J
22 JULY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 506 of 2009

BETWEEN:
AUSTCORP INTERNATIONAL LIMITED (ACN 003 132 090)
Applicant

AND:
BRIAN STEPHEN OWERS
First Respondent

SEAR TAN-BOUNKEUA
Second Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

22 JULY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to O 52 r 15(2) of the Federal Court Rules and the inherent powers of the Court, the time within which the applicant (Austcorp International Limited) might appeal from any or all of the orders made by Rares J on 8 May 2009, 22 May 2009 and 9 June 2009 be extended to 14 August 2009.
2.Pursuant to s 25(2) of the Federal Court of Australia Act 1976 (Cth) and O 52 r 10(2) and O 52 r 10(2A) of the Federal Court Rules, to the extent that leave to appeal is required from any of the orders made by Rares J referred to in par 1 above, Austcorp International Limited have leave to appeal from those orders.
3.Any Notice of Appeal to be filed pursuant…

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: [2009] FCA 774
Decision Date: 22 July 2009

CaseChat Overview and Summary

In the case of Austcorp International Limited v Owers, the central issue before the court was the granting of leave to appeal by Austcorp International Limited, with an alternative application for an extension of time to file an appeal as of right. Additionally, the case involved an application by Counsel for Mr Owers and Ms Tan-Bounkeua to join remaining applicants as party respondents to the appeal. The dispute originated from the purchase of residential apartments off the plan by various individuals and entities, who were promised a guaranteed return and the security of a 10-year lease. However, the expected returns did not materialise when the lessee company went into administration, leading to the current litigation.

The legal issues before the court included whether Austcorp should be granted leave to appeal the primary judge's decision, and if so, whether the time for filing an appeal should be extended. Another key issue was the application by Counsel for Mr Owers and Ms Tan-Bounkeua to add remaining applicants as party respondents to the appeal. The court was required to assess the merits of these applications within the context of the Federal Court Rules and relevant legislative provisions.

The court granted Austcorp leave to appeal, extending the time for filing an appeal to 14 August 2009. It was determined that the appeal should proceed, considering the significance of the case and the potential broader implications for similar cases. The court also denied the application by Counsel for Mr Owers and Ms Tan-Bounkeua to join the remaining applicants as party respondents, finding it unnecessary for the resolution of the current appeal issues. The costs of Austcorp’s application were ordered to be costs in the appeal, unless no Notice of Appeal was filed by the specified date.

Orders

Orders of the court

1. Pursuant to O 52 r 15(2) of the Federal Court Rules and the inherent powers of the Court, the time within which the applicant (Austcorp International Limited) might appeal from any or all of the orders made by Rares J on 8 May 2009, 22 May 2009 and 9 June 2009 be extended to 14 August 2009.

2. Pursuant to s 25(2) of the Federal Court of Australia Act 1976 (Cth) and O 52 r 10(2) and O 52 r 10(2A) of the Federal Court Rules, to the extent that leave to appeal is required from any of the orders made by Rares J referred to in par 1 above, Austcorp International Limited have leave to appeal from those orders.

3. Any Notice of Appeal to be filed pursuant to the leave granted to Austcorp International Limited in par 2 above be filed by 14 August 2009.

4. The costs of and incidental to the application made by Austcorp International Limited by way of Notice of Motion filed on 1 June 2009 be costs in the appeal and, in the event that no Notice of Appeal is filed by 14 August 2009, there be no order as to the costs of that application.

Note:

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

FOSTER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FOSTER J

These reasons are directed to determining Austcorp’s application for leave to appeal (or, alternatively, its application for an extension of time within which to file an appeal as of right) and the application by Counsel for Mr Owers and Ms Tan-Bounkeua for an order joining the remaining applicants as party respondents to the appeal. CONSIDERATION The primary judge’s reasons are lengthy. It is neither necessary nor desirable for present purposes to refer to them in detail. It appears from submissions made to me at the hearing of Austcorp’s leave application and from the primary judge’s reasons that the proceedings below were originally commenced by 48 individuals or separate entities against five respondents. Each of those original applicants had purchased one or more residential apartments off the plan in a resort development on the waterfront at The Entrance, a town on the Central Coast of New South Wales. The promotional material which had initially attracted the attention of those purchasers promised them a guaranteed 7% p.a. net return “… with the security of strata title and a 10 year lease to Pacific International Hotels”. The purchasers were told that the venture was a “… five star investment”. Most of them borrowed most, if not all, of the purchase price required. Unfortunately, within a short time after completing their purchases, the lessee company went into administration and the return on the purchasers’ investment turned out to be far less than 7% p.a. before expenses. At the time his Honour delivered his reasons on 1 May 2009, 25 applicants remained active in the proceedings below. For one reason or another, the first four entities named as respondents in the proceedings below were no longer active by that date. The only active respondent by 1 May 2009 was Austcorp. The principal reason that some parties have become inactive in the proceedings or have been dismissed from the proceedings is that the claims involving those parties have been settled by agreement. His Honour’s reasons dealt with the claims of three investors only: Mr Owers, Ms Tan-Bounkeua and Joseph Luciani and his associate Taldarmar Holdings Pty Limited (the Lucianis). The parties who appeared before me upon the hearing of Austcorp’s leave application informed me that the proceedings involving the Lucianis have also now been settled. Thus, the only live cases which have been determined by his Honour are those which were brought by Mr Owers and Ms Tan-Bounkeua. All cross-claims have been resolved by way of settlement. At [3] of the primary judge’s reasons, his Honour said: A considerable number of investors began these proceedings. These reasons deal with three test cases. Originally I had made orders for a separate hearing of five claims which the parties had selected as raising questions representative of most issues common in a variety of situations involving the various other applicants and respondents. At [4] of his reasons, the primary judge said:Each of the three claims requires individual consideration of the circumstances leading to the investors’ entry into and completion of their contracts for purchase.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 506 of 2009

JUDGE:	FOSTER J
DATE OF ORDER:	22 JULY 2009
WHERE MADE:	SYDNEY