[2000] QCA 138
COURT OF APPEAL
MCMURDO P
FRYBERG J
HELMAN J
Appeal No 11234 of 1999
BENEFICIAL FINANCE CORPORATION LIMITED Appellant
and
BENJAMIN ISAKKA Respondent
BRISBANE
DATE 18/04/2000
JUDGMENT
THE PRESIDENT: This is an appeal from orders of Justice Ambrose made on 2 December 1999 that the plaintiff/respondent be granted leave to further amend its statement of claim within 28 days, that each party be granted liberty to apply upon four days’ notice to the other, that the appellant/defendant’s application be adjourned to a date to be fixed by the defendant after the expiration of 28 days and before the expiration of 56 days from this date and that the costs of the application to date be reserved.
Justice Ambrose’s lengthy reasons demonstrate that he was very dissatisfied with the state of the respondent’s pleadings but finally determined to adjourn the appellant’s application for summary judgment and to give the respondent the opportunity to re-plead. It is impossible for us to determine whether any amended statement of claim might disclose a proper cause of action. The respondent has indicated to us that they intend to amend a statement of claim. They have not done so only because they were told the appellants would apply for a stay if they filed a re-pleaded statement of claim. It would therefore be unjust to determine any appeal on the current statement of claim.
In any case, the application for summary judgment was merely adjourned, it was not dismissed. Justice Ambrose’s orders, and indeed his reasons, demonstrate that he was prepared, after giving the respondent an opportunity to amend the statement of claim, to again hear the appellant’s adjourned application for summary judgment.
There can be no serious argument that the Judge’s granting of the adjournment was in the circumstances outside the exercise of a proper discretion.
This appeal is therefore premature. It should be dismissed with costs to be assessed.
FRYBERG: I agree.
HELMAN J: I agree.
THE PRESIDENT: The order is the appeal is dismissed with costs to be assessed.
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- AGLC
- Beneficial Finance Co Ltd v Isakka [2000] QCA 138
- Case
- [2000] QCA 138
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether Justice Ambrose had exercised his discretion properly in granting the adjournment and allowing the respondent to amend his statement of claim, and if the appeal was premature given that the respondent had not yet re-pleaded. The Court had to consider whether the decision to adjourn the application for summary judgment was within the proper exercise of judicial discretion and if the appeal was appropriately brought before any potential re-pleading by the respondent.
In dismissing the appeal, the Court of Appeal found that Justice Ambrose had exercised his discretion correctly in adjourning the application for summary judgment and allowing the respondent to amend his statement of claim. The Court concluded that it was inappropriate to determine the appeal based on the current state of the respondent's pleadings, as any amended statement of claim might disclose a proper cause of action. Furthermore, since the respondent had indicated an intention to amend the statement of claim, it would be unjust to proceed with the appeal at that stage. The Court also noted that the application for summary judgment was merely adjourned and not dismissed, indicating that Justice Ambrose was prepared to re-hear the application after the respondent's opportunity to amend. The Court of Appeal held that the appeal was premature and should be dismissed with costs to be assessed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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