Ecap Finance Pty Ltd v Ottoway Engineering Pty Ltd - [2017] FCA 200

FEDERAL COURT OF AUSTRALIA
Ecap Finance Pty Ltd v Ottoway Engineering Pty Ltd [2017] FCA 200

File number: SAD 38 of 2017

Judge: WHITE J

Date of judgment: 24 February 2017

Catchwords:
PRACTICE AND PROCEDURE – application on an application for leave to appeal against the dismissal of their application to dissolve an interlocutory injunction to vacate a trial before another Justice of the Federal Court – applicants not a party to the underlying proceedings.

Held: application to vacate trial date dismissed.

Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)(i)

Cases cited: Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635

Date of hearing: 24 February 2017

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicants: Mr DH Solomon

Solicitor for the Applicants: Solomon Brothers

Counsel for the First Respondent: Mr N Floreani

Solicitor for the First Respondent: Equity & Advisory

Counsel for the Second Respondent: Mr B Roberts SC

Solicitor for the Second Respondent: HWL Ebsworth Lawyers

ORDERS

SAD 38 of 2017

BETWEEN:
ECAP FINANCE PTY LTD ACN 608 878 691

First Applicant

TROY JAMES MILLEN

Second Applicant

KELLY JEAN O'BRIEN

Third Applicant

AND:
OTTOWAY ENGINEERING PTY LTD ACN 125 531 428

First Respondent

WESTPAC BANKING CORPORATION ABN 33 007 557 141

Second Respondent

JUDGE:

WHITE J

DATE OF ORDER:

24 FEBRUARY 2017

THE COURT ORDERS THAT:
1.The application for an interlocutory order that the trial listed in proceedings SAD90 of 2016 commencing on 14 March 2017 be vacated and not relisted until after judgment on the appeal be dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT
WHITE J

The applicants seek leave to appeal against the judgment of Besanko J delivered on 30 January 2017: Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 2) [2017] FCA 39. By that judgment, Besanko J dismissed an interlocutory application filed on 19 December 2016 by which the applicants, who were not parties to the underlying proceedings, sought two substantive orders: first, that the first applicant be joined as a second respondent and that Troy James Millen and Kelly Jean O’Brien be joined as third respondents in the underlying proceedings and, secondly, that an injunction granted by his Honour on 30 March 2016 and extended on 2 June 2016 (Ottoway Engineering Pty Ltd v Westpac Banking Corporation [2016] FCA 635) be dissolved.
The formal order made by Besanko J on 30 January 2017 was that the interlocutory application dated 19 December 2016 be dismissed. In addition, his Honour reserved the question of costs. It can be taken that by the formal order, his Honour dismissed, at the least, the application for both substantive orders sought in the interlocutory application of 19 December 2016. The applicants’ draft Notice of Appeal indicates that they seek leave to appeal against the “judgment”…

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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Details

Case: [2017] FCA 200
Decision Date: 24 February 2017

CaseChat Overview and Summary

Ecap Finance Pty Ltd sought to vacate a trial date in a matter where it was not a party. The respondents, Ottoway Engineering Pty Ltd, were involved in a dispute with another party, and the Federal Court had previously issued an interlocutory injunction. Ecap Finance applied for leave to appeal against the dismissal of their application to dissolve this injunction, arguing that the injunction was causing them significant prejudice and that they were entitled to have their application heard. The dispute centred on the procedural rights of Ecap Finance and whether they could intervene in the interlocutory proceedings to vacate the trial date.

The legal issues the court had to address were whether Ecap Finance had standing to apply to vacate the trial date, given that they were not a party to the underlying proceedings, and whether their application to dissolve the interlocutory injunction was valid and should be heard. The court needed to determine whether the application was an abuse of process and whether the applicant had a sufficient interest in the matter to warrant intervention.

The court held that Ecap Finance did not have standing to apply to vacate the trial date as they were not a party to the underlying proceedings. The court found that the application to dissolve the interlocutory injunction was an abuse of process and was not in the interest of justice. The court further held that Ecap Finance had not demonstrated a sufficient interest in the matter to warrant intervention. Consequently, the application to vacate the trial date was dismissed.

No further orders were made by the court.

Orders