Brooker v Friend (No 2)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
BROOKER v FRIEND & BROOKER PTY LTD & Anor (No 2) [2008] NSWCA 129

FILE NUMBER(S):
40438/05

HEARING DATE(S):
29 November 2007

JUDGMENT DATE:
7 May 2008

PARTIES:
Frederick Clarkson BROOKER
FRIEND & BROOKER PTY LTD
Nicholas Macarthur FRIEND

JUDGMENT OF:
Mason P McColl JA Basten JA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 5181/2000

LOWER COURT JUDICIAL OFFICER:
Nicholas J

LOWER COURT DATE OF DECISION:
29 April 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
[2005] NSWSC 395

COUNSEL:
Appellant: R G Forster SC/ M S White
1st Respondent: No appearance
2nd Respondent: R Newlinds SC/ B Kremer

SOLICITORS:
Appellant: Jonathan D'Arcy & Co
1st Respondent: None
2nd Respondent: Bull, Son & Schmidt

CATCHWORDS:

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Motion to recall the Court’s reasons dismissed with costs.
Direct the parties to file submissions as to final orders within 7 days.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40438/05

MASON P
McCOLL JA
BASTEN JA

Wednesday 7 May 2008

Frederick Clarkson BROOKER v FRIEND & BROOKER PTY LIMITED & Ors

(No 2)

JUDGMENT

1. MASON P:  On 20 December 2006 the Court published reasons to the effect that a majority (Mason P and McColl JA) had decided to uphold the appeal (Brooker v Friend & Brooker & Anor [2006] NSWCA 385).

2. I do not intend to recount the facts or recite the details of the earlier reasons.  References to paragraphs in them will appear as J1, J2 etc.

3. I concluded that the appellant (Mr Brooker) was entitled to a declaration that the second respondent (Mr Friend) is required to contribute equally to the discharge of the outstanding obligations under the SMK loan arrangements, with consequential orders for payment of the appropriate sum.  McColl JA indicated (at J163) her agreement with the orders proposed by me.  Basten JA proposed the dismissal of the appeal.

4. My reasons included the adoption of McColl JA’s summary of the facts (J1).

5. The parties were directed to consult and to file Short Minutes of Order if they could agree.

6. Mr Brooker filed draft Orders that go well beyond the relief foreshadowed by the majority of the Court.

7. Mr Friend filed a notice of motion seeking orders that “the Court” recall the whole of my reasons for judgment and paras [152], [155], [156], [162] and [163] of the reasons for judgment of McColl JA.

8. Written submissions were exchanged and the Court reconvened to hear further argument on the motion and as to the terms of orders that would give effect to the reasons of the majority if unrecalled.

9. Despite the form of the prayer for relief in the notice of motion, each judge whose reasons are sought to be recalled is, in my view, required to address that application individually.  Accordingly, what follows seeks to explain why I decline to withdraw my published reasons or to resile from the range of orders I have proposed.  My…