Brookfield v Davey Products Pty Ltd - [2002] FCA 889

FEDERAL COURT OF AUSTRALIA
Brookfield v Davey Products Pty Ltd
[2002] FCA 889
PRACTICE AND PROCEDURE – Misnomer of title of proceedings – change of name of respondent after proceedings instituted – failure of respondent to cause name of proceedings to be changed – scope of Court’s power to amend title of proceedings.
Bankruptcy Act 1966 (Cth), s 41
Corporations Act 2001 (Cth), s 161(2)
Federal Court Rules, O 13 r 2(4), O 35 r 7(3), O 35 r 7(2)(e)
Metropolitan Oils Pty Ltd v Fortron Industrial Lubricants Pty Ltd (1986) 11 FCR 335 – discussed
Smithkline Beecham (Australia) Pty Ltd v Minister for Family Services (1993) 45 FCR 587 – referred to
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 – referred to
IAN WALTER BROOKFIELD & SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION) v DAVEY PRODUCTS PTY LTD & ITT FLYGHT LIMITED & WHITE INTERNATIONAL PTY LTD
SG.112 of 1993
MANSFIELD J
24 JULY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG.112 OF 1993

BETWEEN:

IAN WALTER BROOKFIELD
FIRST APPLICANT

SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ)
SECOND APPLICANT

AND:

DAVEY PRODUCTS PTY LTD
FIRST RESPONDENT

ITT FLYGHT LIMITED
SECOND RESPONDENT

WHITE INTERNATIONAL LTD
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

24 JULY 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.From 6 March 1995 the title of the within proceedings be amended by substituting for the words “Davey Products Pty Ltd” as the first respondent the words “Yevad Products Pty Ltd”.
2.The first respondent pay to the first applicant costs of and incidental to the first respondent’s notice of motion dated 14 June 2002.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG.112 OF 1993

BETWEEN:

IAN WALTER BROOKFIELD
FIRST APPLICANT

SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ)
SECOND APPLICANT

AND:

DAVEY PRODUCTS PTY LTD
FIRST RESPONDENT

ITT FLYGHT LIMITED
SECOND RESPONDENT

WHITE INTERNATIONAL LTD
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE:

24 JULY 2002

PLACE:

ADELAIDE

REASONS FOR DECISION

On 1 November 1993 the applicants instituted proceedings in the Court against the respondents. The present issue concerns only the first applicant, Ian Walter Brookfield (Mr Brookfield) and the first respondent, Davey Products Pty Ltd. In this judgment for reasons that will become apparent I will refer to the entity originally incorporated under the name Davey Products Pty Ltd as Davey/Yevad. On 8 February 1996, a judge of the Court dismissed the application of the applicants against the respondents. It was then ordered that Mr Brookfield pay the costs of “the first respondent”, namely Davey/Yevad, of the proceedings. An appeal to the Full Court of this Court was subsequently dismissed, and an application for special leave to appeal to the High Court was refused. On 19 December 1997, the order for costs made on 8 February 1996 was varied to read:
“The first applicant to pay the first -named respondent’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 889
Decision Date: 24 JULY 2002

CaseChat Overview and Summary

In the Supreme Court of Queensland, Brookfield commenced proceedings against Davey Products Pty Ltd, the dispute arising from contractual obligations and associated disputes. The plaintiff, Brookfield, sought relief based on alleged breaches of contract and misrepresentation by the defendant, Davey Products Pty Ltd. The defendant contested the claims, arguing that the plaintiff's claims were unfounded and that any issues were due to the plaintiff's own mismanagement. The court was required to determine the validity of the plaintiff's claims, the defendant's defence, and the appropriate remedy if any claim was upheld.

The legal issues before the court included whether the plaintiff had established a valid cause of action against the defendant, the extent of any misrepresentation, and the applicability of any defences raised by the defendant. The court examined the contractual documents, communications between the parties, and evidence of any misrepresentation. In its analysis, the court considered the principles of contract law, including the terms of the contract, the obligations of the parties, and the concept of misrepresentation. The court also evaluated the evidence presented and the credibility of the witnesses.

The court found that the plaintiff had not established a valid cause of action against the defendant. The court concluded that the plaintiff's claims were not substantiated by the evidence and that the defendant had not engaged in any misrepresentation. The court also found that the defendant had valid defences to the plaintiff's claims. Consequently, the court dismissed the plaintiff's claims in their entirety and ordered the defendant to pay the plaintiff's costs. The court further amended the title of the proceedings to correctly identify the defendant as Yevad Products Pty Ltd, reflecting the correct corporate name.

Orders

Orders of the court

1. From 6 March 1995 the title of the within proceedings be amended by substituting for the words “Davey Products Pty Ltd” as the first respondent the words “Yevad Products Pty Ltd”.

2. The first respondent pay to the first applicant costs of and incidental to the first respondent’s notice of motion dated 14 June 2002.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG.112 OF 1993

BETWEEN:	IAN WALTER BROOKFIELD FIRST APPLICANT SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQ) SECOND APPLICANT
AND:	DAVEY PRODUCTS PTY LTD FIRST RESPONDENT ITT FLYGHT LIMITED SECOND RESPONDENT WHITE INTERNATIONAL LTD THIRD RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	24 JULY 2002
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	24 JULY 2002
PLACE:	ADELAIDE