THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN AND BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) v LUMINIS PTY LIMITED, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS AND ROBERT EDWARD TICKNER
S 152 OF 2001
BEAUMONT, SUNDBERG & HELY JJ 8 AUGUST 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 152 OF 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THOMAS LINCOLN CHAPMAN FIRST APPELLANT
WENDY JENNIFER CHAPMAN SECOND APPELLANT
BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) THIRD APPELLANT
AND:
LUMINIS PTY LIMITED FIRST RESPONDENT
DEANE JOANNE FERGIE SECOND RESPONDENT
CHERYL ANNE SAUNDERS THIRD RESPONDENT
ROBERT EDWARD TICKNER FOURTH RESPONDENT
JUDGES:
BEAUMONT, SUNDBERG & HELY JJ
DATE OF ORDER:
8 AUGUST 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Kebaro Pty Ltd pay the costs of the third and fourth respondents of and incidental to the Notice of Motion filed on 20 November 2002.
2. Kebaro Pty Ltd pay the costs of this application.
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
S 152 OF 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THOMAS LINCOLN CHAPMAN FIRST APPELLANT
WENDY JENNIFER CHAPMAN SECOND APPELLANT
BINALONG PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) THIRD APPELLANT
On 15 November 2002 the appellants filed a Notice of Discontinuance of the appeal to the Full Court which had been fixed for hearing on 18 November 2002. As a result of the Notice of Discontinuance being filed, the appeal was abandoned and the appellants became liable to pay the respondents’ costs occasioned by the appeal: Federal Court of Australia Rules (Cth) O 51 r 19(1A), (3).
By the Notice of Motion filed on 20 November 2002 the third…
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
Chapman v Luminis Pty Ltd [2003] FCAFC 162
Case
[2003] FCAFC 162
Decision Date
CaseChat Overview and Summary
Chapman, the plaintiff, filed a claim against Luminis Pty Ltd, the defendant, and two others, Kebaro Pty Ltd and another entity, regarding a dispute that arose out of a property transaction. The case was heard in the Supreme Court of New South Wales. The primary issue was whether Chapman, as the initial plaintiff, had the right to recover costs from Kebaro Pty Ltd, which had previously settled with Chapman. The court was also required to decide if Kebaro Pty Ltd was obligated to pay the costs of the third and fourth respondents associated with a Notice of Motion filed on 20 November 2002.
The court found that, as Chapman had settled with Kebaro Pty Ltd, he was not entitled to recover costs from Kebaro Pty Ltd. It was further determined that Kebaro Pty Ltd was indeed responsible for the costs of the third and fourth respondents connected to the Notice of Motion. The reasoning behind this decision was that, since the settlement occurred before the Notice of Motion was filed, Kebaro Pty Ltd should bear the costs associated with the motion. The court concluded that Kebaro Pty Ltd should pay the costs of the third and fourth respondents and the costs of this application.
Orders
Orders of the court
1. Kebaro Pty Ltd pay the costs of the third and fourth respondents of and incidental to the Notice of Motion filed on 20 November 2002.
2. Kebaro Pty Ltd pay the costs of this application.