This morning an application has been made by the third respondent, Brisalebe AG Limited (Brisalebe) for leave to file a defence and cross-claim. A notlce of appearance was also filed in court this morning on behalf of Brisalebe. Today is the tenth day of the hearlng and is the last day for the hearing of evidence in this matter.
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The application is opposed by Mrs Bronwyn Searle, the applicant in the main proceedings, but not by the second respondent, Mr Peter Keayes. No evidence has been tendered in support of or in explanation of the application. It has been indicated by counsel that Brisalebe does not propose to call any evidence, tender any documents or cross-examine any witnesses but wishes merely to address the court in support of the defence and cross-claim and the orders sought in the cross-claim.
The defence sought to be filed basically does not admit matters alleged in the statement of claim and claims that Brisalebe is entitled to 23 per cent of the capital of Brisalebe AG (AG) , a Swiss corporation. The statement of claim alleges that such shareholding was secured by Brisalebe -. as the result of a breach by Peter Keayes of fiduciary and other obligations. By the cross-claim Brisalebe seeks a declaration that it owns 23 per cent of the capital of AG and that AG exclusively holds the absolute interest in certain
a
.
specif
;ed patent applications.
. .
The amended application is dated 3 June 1994 and the statement of claim was filed on 20 June 1994. The proceedings have been the subject of directions hearings and Brisalebe has neither entered an appearance nor filed any pleadings nor put on any evidence in the proceedings prior to this application. Senior counsel for Mrs Searle indicates to me that his client's case has been conducted on the basis of the lssues raised in the
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pleadings to date. He has referred me to the judgment of Rodgers J in the case of Coopers Brewery Limlted v Panfida Foods Limited (1992) 26 NSWLR 738.
He submits that Brisalebe has had a reasonable opportunity to conduct its case. He says that there would be patent prejudice to his client if new issues are sought to be raised at this late stage and indicates that his case has effectively been closed and that his case has been run on the assumption…
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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AGLC
Chalk v Commissioner for Superannuation [1994] FCA 1063
Case
[1994] FCA 1063
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Bronwyn Searle brought an action against several respondents, including Peter Keayes and Brisalebe AG Limited, seeking leave to file a defence and cross-claim. The application was opposed by Searle but not by the second respondent, Peter Keayes. Brisalebe's proposed defence and cross-claim aimed to assert their entitlement to a significant portion of the capital of Brisalebe AG, a Swiss corporation, and sought a declaration of ownership over certain patent applications.
The court had to determine whether Brisalebe's late application to file a defence and cross-claim should be permitted, considering factors such as fairness between the parties and effective case management. The applicant's counsel highlighted the potential prejudice to Searle's case if new issues were introduced at such a late stage, emphasizing that Searle had conducted their case based on the existing issues. The court noted that Brisalebe had not provided any explanation for the delay in filing their defence and cross-claim and had not presented any evidence to support their application or demonstrate exceptional circumstances.
The court dismissed Brisalebe's application to file a defence and cross-claim, finding that the late filing prejudiced Searle and did not align with effective case management. The court allowed Brisalebe to make written submissions on the existing evidence and address those submissions orally, but stipulated that Brisalebe would bear its own costs. No costs order was made regarding the application itself.