Citation: Von Risefer & Anor v Permanent Trustee Co P/L

[2001] QCA 529

COURT OF APPEAL

de JERSEY CJ
CHESTERMAN J
ATKINSON J

Appeal No 5162 of 2000

EUSTACE VON RISEFER and
ELIZABETH VON RISEFER
(Plaintiffs) Appellants

and

PERMANENT TRUSTEE COMPANY PTY LTD
(Defendant) Respondent

BRISBANE

..DATE 23/11/2001

JUDGMENT

THE CHIEF JUSTICE: This is an appeal against a judgment entered in favour of the respondent mortgagee for the recovery of possession of the appellants' land at Helensvale. The appellants, though notified and plainly aware that the appeal is set down for hearing this morning in this courtroom, have failed to appear to prosecute their appeal. The appeal should therefore be dismissed for want of prosecution.

We have all had the opportunity to consider the judgment the subject of the appeal, and the outlines of argument presented both for the appellants and the respondent. Our having done that, it should be observed that the Judge's reasons for judgment, which are extensively footnoted, deal comprehensively with the challenges mounted by the appellants and convincingly establish the respondent's entitlement to recover possession of the land.

The notice of appeal is a lengthy document and for the most part in my view its grounds are incomprehensible, expressed in embarrassing form and irrelevant. The appellants' outline of argument largely reproduces the notice of appeal. Judicial resources have been consumed, on one view unnecessarily, in the progress of the matter to this point.
It is appropriate, in terms of the merits, our dismissing the appeal for want of prosecution, that it also be confirmed that the appeal should be dismissed because of the respondent's demonstrable entitlement for judgment for the reasons which were expressed by the learned trial Judge.

CHESTERMAN J: I agree.

ATKINSON J: I agree.

THE CHIEF JUSTICE: The appeal is dismissed, with costs to be assessed.

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CaseChat Overview and Summary

In the appeal case of Von Risefer & Anor v Permanent Trustee Co P/L, the plaintiffs, Eustace Von Risefer and Elizabeth Von Risefer, appealed against the judgment entered in favour of the mortgagee, Permanent Trustee Company Pty Ltd, for the recovery of possession of their land at Helensvale. The appeal was dismissed for want of prosecution, as the plaintiffs failed to appear for the scheduled hearing despite being notified. The Court of Appeal found that the grounds for the appeal were largely incomprehensible, irrelevant, and poorly expressed, resulting in a waste of judicial resources.

The legal issues before the Court were whether the plaintiffs had a valid appeal against the decision of the lower court, which had found in favour of the mortgagee. The Court also had to consider whether the appeal should be dismissed for reasons of want of prosecution and whether the mortgagee was entitled to the judgment based on the reasons provided by the trial judge.

The Court of Appeal found that the notice of appeal was poorly written, with incomprehensible and irrelevant grounds, and the appeal should be dismissed for want of prosecution. The judges also reviewed the trial judge's reasons for judgment and found that the mortgagee was entitled to recover possession of the land as the plaintiffs' challenges were convincingly addressed. Consequently, the appeal was dismissed, and costs were to be assessed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established