Devere Holdings Pty Ltd v Verge

[2012] FCA 842

FEDERAL COURT OF AUSTRALIA

Devere Holdings Pty Ltd v Verge [2012] FCA 842

Citation:		Devere Holdings Pty Ltd v Verge [2012] FCA 842
Parties:		DEVERE HOLDINGS PTY LTD and PACKHAM PTY LTD (ACN 056 326 884) v EVAN ROBERT VERGE, GEORGE AUBREY LOPEZ and CASTLEWORLD PTY LTD
File number:		WAD 29 of 2011
Judge:		GILMOUR J
Date of judgment:		18 July 2012
Legislation:		Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba)
Date of hearing:	18 July 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr C Williams
Solicitor for the Applicant:	Solomon Brothers
Counsel for the Respondent:	Ms J Bartlett
Solicitor for the Respondent:	Jackson McDonald

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 29 of 2011

BETWEEN:

DEVERE HOLDINGS PTY LTD and PACKHAM PTY LTD (ACN 056 326 884)
Appellants

AND:

EVAN ROBERT VERGE and GEORGE AUBREY LOPEZ
First Respondents

CASTLEWORLD PTY LTD
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	18 JULY 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth), the appeal be dismissed for want of prosecution.

2.The appellants pay the respondents’ costs in relation to this appeal, to be taxed if not agreed.  

NOTE:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 29 of 2011

BETWEEN:

DEVERE HOLDINGS PTY LTD and PACKHAM PTY LTD (ACN 056 326 884)
Appellants

AND:

EVAN ROBERT VERGE and GEORGE AUBREY LOPEZ
First Respondents

CASTLEWORLD PTY LTD
Second Respondent

JUDGE:	GILMOUR J
DATE:	18 JULY 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In this matter a notice of appeal was filed by the appellants following a judgment of Justice McKerracher given on 22 December 2010.  Since then the matter has not progressed, which makes the period of inaction on the part of the appellants some 17 months.  I accept from what I have been told by counsel for the appellants that there was, for a period, a reason for inaction caused by the illness of the director of Devere Holdings Pty Ltd.  However, that explanation has, for some time, no longer been applicable.  Indeed, quite forthrightly, counsel for the appellants has, in effect, advised the Court that he has been without instructions for some time and certainly since the last callover.

2. This is the fifth or sixth occasion that the matter has appeared in the callover list. The appellants’ counsel submitted that I should make a springing order requiring the appellants to take the step of filing draft indices to the appeal books, and in the event that that is not complied with, that the appeal ought be dismissed. In effect, counsel for the first respondent opposed that application. In my opinion this appeal ought be dismissed for want or prosecution under s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) (the Act).

3. There is absolutely no explanation of any substance before the Court which would assist me in exercising a discretion in the way that the appellants, through its counsel, seeks for the grant of yet a further indulgence.  The matter should be brought to finality and the respondents should be in a position where it knows that the matter is at an end. 

4. Accordingly, I will for these reasons make an order pursuant to s 25(2B)(ba) of the Act that the appeal be dismissed for want of prosecution.

5. There will also be an order that the appellants pay the respondents’ costs in relation to the appeal to be taxed if not agreed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       9 August 2012