Benseman v Noosa Cat Australia Pty Ltd

COURT OF APPEAL [1996] QCA 146

PINCUS JA
DAVIES JA
McPHERSON JA

Appeal No 271 of 1995

JOHN BENSEMAN Appellant(Plaintiff)

and

NOOSA CAT AUSTRALIA PTY LTD
(ACN 056 475 506) Respondent(Defendant)

BRISBANE

..DATE 05/02/96

JUDGMENT

PINCUS JA: This is an appeal from the District Court in a case where an application for summary judgment in a dispute about a boat was refused. The order of the Court, as it appears from the material, was that the summons for summary judgment was dismissed and an order for costs was made.

The basis upon which the matter comes before the Court now is on an application for leave to appeal and it is said by
Mr Favell, who appears for the applicant, that the decision of the District Court should be the subject of leave to appeal because it involves a question of construction of the rules - the question being, as I understand it, whether or not on such an application as it had before it, the District Court was entitled to use the relevant Supreme Court Rules.

An initial difficulty however, as Mr Favell rightly seems to concede, is that the matter was argued below on the basis that there was, in fact, a triable issue. Therefore, prima facie, whatever the rules said, the application for summary judgment could not succeed. Mr Favell informs us, however, that the purpose of the application for leave to appeal is to mount an appeal in which it will be argued that this Court should make an order, one not sought below, that the application for summary judgment succeed to the extent that the Court would give leave to defend, on the basis that the property in question, a boat, would be returned on security being given for the amount of the lien which the respondent claimed in respect of the boat.

The argument advanced by Mr Favell also included the information that when the matter was before the District Court an adjournment was sought and it was intended to use the adjournment to put in material for, among other things, the purpose of supporting an order of the kind which would ultimately be sought from this Court. That material was not put in.

Mr Favell concedes that the order which would be sought from this Court was not one sought below and the circumstances are such, in my opinion, that it would be quite inappropriate for this Court to give leave to appeal. In summary, summary judgment is sought when it is conceded that there is a triable issue and when the only purpose of the appeal is, in effect, to make for the first time an application for an order in a form not sought below. I would dismiss the application for leave to appeal with costs.

DAVIES JA: I agree.

McPHERSON JA: I agree.

PINCUS JA: That will be the order.

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CaseChat Overview and Summary

The appeal in Benseman v Noosa Cat Australia Pty Ltd involves the refusal of a summary judgment application in a dispute concerning a boat. The case was heard in the Court of Appeal, with Pincus JA delivering the judgment, and was joined by Davies JA and McPherson JA. The appellant, John Benseman, sought leave to appeal the decision of the District Court, which had dismissed the summary judgment application and ordered costs. The appeal focused on whether the District Court had the authority to apply the Supreme Court Rules in its decision-making process.

The primary legal issue before the Court of Appeal was whether the District Court had correctly applied the rules in dismissing the summary judgment application. The appellant argued that the Court should have granted the application for summary judgment and further, sought an order that would allow the boat to be returned on the provision of security for the respondent's claimed lien. The appellant contended that the District Court's refusal to grant summary judgment was in error, particularly since the appeal sought an order different from what was requested in the District Court.

The Court of Appeal found that the District Court's decision was based on the presence of a triable issue, which would naturally prevent a summary judgment from being granted. Additionally, the Court noted that the order sought on appeal was not the one requested in the District Court and that it would be inappropriate to grant leave to appeal under those circumstances. Pincus JA dismissed the application for leave to appeal, and both Davies JA and McPherson JA concurred with this decision. The Court also ordered that the costs of the appeal be borne by the appellant.

CaseChat Overview and Summary

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