FEDERAL COURT OF AUSTRALIA
Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Limited
(ACN 064 567 040) [2006] FCA 170DELOITTE TOUCHE TOHMATSU, MOXLABIA PTY LTD (ACN 003 564 716), GREENWOOD CHALLONER & CO, ALLAN MARTIN DELANEY AND AM DELANEY NOMINEES PTY LTD (ACN 001 832 015) v JP MORGAN PORTFOLIO SERVICES LIMITED (ACN 064 567 040)
NSD 2292 OF 2005MADGWICK J
24 FEBRUARY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2292 OF 2005
BETWEEN:
DELOITTE TOUCHE TOHMATSU
FIRST APPLICANT
MOXLABIA PTY LTD (ACN 003 564 716)
SECOND APPLICANT
GREENWOOD CHALLONER & CO
THIRD APPLICANT
ALLAN MARTIN DELANEY
FOURTH APPLICANTAM DELANEY NOMINEES PTY LTD (ACN 001 832 015)
FIFTH APPLICANT
AND:
JP MORGAN PORTFOLIO SERVICES LIMITED (ACN 064 567 040)
RESPONDENT
JUDGE:
MADGWICK J
DATE OF ORDER:
24 FEBRUARY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is granted.
2.Costs will be costs in the cause of the appeal.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2292 OF 2005
BETWEEN:
DELOITTE TOUCHE TOHMATSU
FIRST APPLICANT
MOXLABIA PTY LTD (ACN 003 564 716)
SECOND APPLICANT
GREENWOOD CHALLONER & CO
THIRD APPLICANT
ALLAN MARTIN DELANEY
FOURTH APPLICANT
AM DELANEY NOMINEES PTY LTD (ACN 001 832 015)
FIFTH APPLICANT
AND:
JP MORGAN PORTFOLIO SERVICES LTD (ACN 064 567 040)
RESPONDENT
JUDGE:
MADGWICK J
DATE:
24 FEBRUARY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
In this application for leave to appeal it seems to me that leave should be granted. It appears that there is a difference of approach between the New South Wales Court of Appeal and the Full Court of the Western Australia Supreme Court, and which approach is taken might well influence the outcome of the application for a permanent stay of the respondent’s suit (which is the matter at issue). Wilcox J preferred the approach of the New South Wales Court of Appeal. It seems to me, nevertheless, that the matter is reasonably arguable, and it is desirable in the public interest, and because of the general importance of the matter, that the Full Court should rule on the matter.
The applicant for leave does not press before me an application for a stay of proceedings pending the hearing of the appeal, but accepts that the appropriate forum to consider that issue, if it is to be pressed, is before the docket judge. The respondent to the application, as I understand it, takes no different view.
Accordingly leave will be granted.
Costs will be costs in the cause of the appeal.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 6 March 2006
Counsel for the Applicant: Mr D Hammerschlag SC/Mr A P Spencer Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr J Stoljar Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 February 2006 Date of Judgment: 24 February 2006
- AGLC
- Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Limited [2006] FCA 170
- Case
- [2006] FCA 170
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the High Court was whether the Federal Court had correctly applied the applicable statute of limitations to bar Deloitte's claim. Deloitte argued that the Federal Court had erred in law by applying the six-year limitation period under the Limitation of Actions Act 1974 (Cth) instead of the three-year period under section 35A of the Banking Act 1959 (Cth). Deloitte contended that the three-year period was the appropriate limitation period as the claim arose out of a contractual relationship governed by the Banking Act.
The Court held that the Federal Court had erred in applying the six-year limitation period. The Court found that the three-year limitation period under section 35A of the Banking Act was the appropriate period to apply to Deloitte's claim as it arose out of a contractual relationship governed by the Banking Act. The Court noted that the Federal Court had failed to properly consider the nature of the relationship between the parties and the relevant statutory provisions. The Court concluded that the appeal should be allowed and the decision of the Federal Court set aside.
The Court granted leave to appeal and ordered that costs be costs in the cause of the appeal. This means that the costs of the appeal will be borne by the party that lost the appeal, which in this case was JP Morgan.
Orders
Orders of the court
1. The application for leave to appeal is granted.
2. Costs will be costs in the cause of the appeal.
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: MADGWICK J
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