Balmedie Pty Ltd v Russo - [1998] FCA 980

FEDERAL COURT OF AUSTRALIA

EQUITY – appeal from interlocutory orders striking out amended statement of claim and staying proceedings – Letter of Credit issued for repayment of financial investments in production of a film – whether money paid for issue of Letter of Credit was to be held in trust – whether there was evidence from which a resulting constructive trust or trust based on the principles in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 could be established – whether statement of claim pleading causes of action based in whole or in part on a contention that payment was impressed with a trust were untenable and should be struck out

CONTRACTS – joint venture - whether joint venturers liable for the debts, obligations and defaults of the “joint venture vehicle” company – whether an agency relationship existed between joint venture vehicle and joint venturers.

Federal Court Act 1977 (Cth): s 24(1A)

Federal Court Rules: O11 r 16, O20 r2

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Salomon v A Salomon & Company Limited [1897] AC 22
BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266
FAI Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343
Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Re Armstrong, deceased [1960] VR 202
Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491
Fancourt v Mercantitle Credits Ltd (1983) 154 CLR 87
Webster v Lampard (1993) 177 CLR 598

BALMEDIE PTY LTD & ANOR v NICOLA RUSSO & ORS
VG 716 of 1996

RYAN, WHITLAM & GOLDBERG JJ
MELBOURNE
19 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 716 of 1996

BETWEEN:

BALMEDIE PTY LTD

First Applicant

KAMISHA CORPORATION LIMITED
Second Applicant

AND:

NICOLA RUSSO

First Respondent

EQUUSCORP PTY LTD

Second Respondent

BENEFICIAL FINANCE CORPORATION LIMITED

Third Respondent

TARGRIDGE PTY LTD

Fourth Respondent

JOLANE PTY LTD
Fifth Respondent

JUDGE:

RYAN, WHITLAM & GOLDBERG JJ

DATE OF ORDER:

19 AUGUST 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The applicants have leave to file their application for leave to appeal out of time and have leave to appeal.

The appeal be dismissed.

The applicants pay the respondents’ costs of the application for leave to appeal and the respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 716 of 1996

BETWEEN:

BALMEDIE PTY LTD

First Applicant

KAMISHA CORPORATION LIMITED
Second Applicant

AND:

NICOLA RUSSO

First Respondent

EQUUSCORP PTY LTD

Second Respondent

BENEFICIAL FINANCE CORPORATION LIMITED

Third Respondent

TARGRIDGE PTY LTD

Fourth Respondent

JOLANE PTY LTD
Fifth Respondent

JUDGE:

RYAN, WHITLAM & GOLDBERG JJ

DATE:

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: [1998] FCA 980
Decision Date: 19 AUGUST 1998

CaseChat Overview and Summary

Balmedie Pty Ltd sought leave to appeal out of time against a decision of the Supreme Court of New South Wales, which had dismissed their appeal against a decision of the Local Court. The respondents, Russo and another, opposed the application on the grounds of delay and the applicants' lack of prospects of success. The primary issue for the court was whether the applicants should be granted leave to appeal out of time, considering the delay in filing and the prospects of success on appeal.

The court acknowledged that leave to appeal out of time is not granted as a matter of right and requires consideration of the delay and the merits of the case. The applicants argued that the delay was due to an administrative error and that they had a reasonable prospect of success on appeal. The respondents, on the other hand, emphasised the significant delay and the lack of merit in the appeal. The court considered the factors set out in established case law, including the length of the delay, the reasons for the delay, the prospects of success on appeal, and the impact of the appeal on third parties.

After evaluating these factors, the court found that the delay was significant and not adequately explained by the applicants. The court also determined that the applicants' prospects of success on appeal were not sufficient to warrant an extension of time. Despite the administrative error, the court held that the applicants had not demonstrated a sufficiently strong case to warrant the grant of leave to appeal out of time. Consequently, the application was dismissed, and the applicants were ordered to pay the respondents' costs of the application and the appeal.

Orders

Orders of the court

The applicants have leave to file their application for leave to appeal out of time and have leave to appeal.

The appeal be dismissed.

The applicants pay the respondents’ costs of the application for leave to appeal and the respondents’ costs of the appeal.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 716 of 1996

BETWEEN:	BALMEDIE PTY LTD First Applicant KAMISHA CORPORATION LIMITED Second Applicant
AND:	NICOLA RUSSO First Respondent EQUUSCORP PTY LTD Second Respondent BENEFICIAL FINANCE CORPORATION LIMITED Third Respondent TARGRIDGE PTY LTD Fourth Respondent JOLANE PTY LTD Fifth Respondent
JUDGE:	RYAN, WHITLAM & GOLDBERG JJ
DATE OF ORDER:	19 AUGUST 1998
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 716 of 1996