Benseman v Noosa Cat Australia Pty Ltd

[1996] QCA 146

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. 

-----