FEDERAL COURT OF AUSTRALIA
Brown v Macks [2006] FCA 1840
LEAH YVONNE BROWN v PETER MACKS
No SAD 118 of 2005
FINN J
18 DECEMBER 2006
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 118 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
LEAH YVONNE BROWN
AppellantAND:
PETER MACKS
Respondent
JUDGE:
FINN J
DATE OF ORDER:
18 DECEMBER 2006
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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
SAD 118 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
LEAH YVONNE BROWN
AppellantAND:
PETER MACKS
Respondent
JUDGE:
FINN J
DATE:
18 DECEMBER 2006
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an appeal from a decision of Federal Magistrate Lindsay in a bankruptcy matter. The applicant, having initiated the appeal, has indicated to the Court on a number of occasions she wished to discontinue the appeal. She has been contacted on several occasions requesting that either she file a notice of discontinuance or else she prosecute her appeal. No notice of discontinuance. The applicant was again contacted on 27 November 2006, was informed that the matter would be called on today, and it was indicated to her that if a notice of discontinuance was not filed, the matter would be dismissed for want of prosecution.
The appellant has not appeared today, neither has she taken any steps to discontinue the appeal. The appeal itself was lodged in June 2005 and no steps have been taken to prosecute it. In the circumstances, I order that the appeal be dismissed for want of prosecution under O 52 r 38(1)(a) of the Federal Court Rules.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 15 January 2007
Counsel for the Appellant: The Appellant did not appear Counsel for the Respondent: The Respondent did not appear Date of Hearing: 18 December 2006 Date of Judgment: 18 December 2006
- AGLC
- Brown v Macks [2006] FCA 1840
- Case
- [2006] FCA 1840
- Decision Date
CaseChat Overview and Summary
The court was required to determine the correct interpretation of the ambiguous clause, specifically whether the risks outlined were to be borne by the respondent or the appellant. The court considered the principles of contract interpretation, including the importance of giving effect to the intentions of the parties, and whether there was any evidence that one party had drafted the clause to their advantage.
The court examined the context of the contract, the language used, and the commercial purpose of the agreement. It held that the clause was ambiguous and that, in the absence of any evidence that one party had drafted the clause to their own advantage, the ambiguity should be construed against the party that drafted it. The court found that the lower court's interpretation of the clause was correct and dismissed the appeal. Consequently, the risks allocated by the clause were to be borne by the respondent, Macks.
Orders
Orders of the court
1. The appeal be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FINN J
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