Beneficial Finance Co Ltd v Isakka

[2000] QCA 138

[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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