Ettridge v Ozyjiwsky (No 2) - [2013] SADC 86

District Court of South Australia

(Civil)

ETTRIDGE v OZYJIWSKY (No 2)

[2013] SADC 86

Ruling of His Honour Judge Slattery (ex tempore)

20 September 2012

PROCEDURE - JUDGMENTS AND ORDERS

The plaintiff brought an interlocutory application against the defendant, seeking orders that the defendant withdraws the sum of $100,000 from a particular “trading account” and pay same into the Suitors’ Fund. The plaintiff also made an application that the defendant be restrained from using funds in the said “trading account” in relation to trading on a foreign exchange market.
The application came before a Judge of the Court on 6 June 2012 and an interim order was made restraining the defendant from using the said trading account until further order.
After further affidavits were filed by the plaintiff and his solicitor in the Court, the application again came before a Judge of the Court who ordered, inter alia, that the order for injunction (as to trading with the said account) continue until close of business 21 June 2012. There were subsequent appearances in this Court where the order with injunction in regards to the trading account was extended. An order was made for an early trial.
The matter came on for trial directions before a Master on 3 September 2012 when it was revealed that the defendant had, on 6 June 2012, emptied the said trading account and paid the funds to a secured creditor that held a registered mortgage over his home property.
Following a further interlocutory application made by the plaintiff dated 17 September 2012 that was heard by a Master of the Court on 18 September 2012, orders were made that, inter alia, the defendant pay $90,000 into the District Court Suitors’ Fund.
The defendant appellant appeals against the Orders of the Master entered on 18 September 2012.
Held: appeal dismissed.
District Court Civil Rules 2006 Rule 17 , referred to.
American Cyanamid v Ethicon (1975) AC 396 , applied.
McLean v the DID Piling Pty Ltd (2010) SASC 33; Beare v Light Regional Council (2008) SADC 72; ABC v O’Neill [2006] HCA 46 , considered.

ETTRIDGE v OZYJIWSKY (No 2)
[2013] SADC 86

HIS HONOUR: Appeal made pursuant to Rule 17 of the District Court Rules under which an appeal lies of right from a judgment of a Master of the Court.
The relevant principles in relation to the appeal before me are now well understood.
The appeal is by way of a rehearing on the documents considered at first instance and I have the power to receive further evidence which is to be considered in light of the material before the court at the time that it hears the appeal.
The appeal is a complete rehearing on the merits with a need to identify some error of the Master before I may allow the appeal.
I note the difference between the approach to the task before me that may be identified in the decision of Layton J in McLean v the DID Piling…

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: [2013] SADC 86
Decision Date: 20 September 2012

CaseChat Overview and Summary

Ettridge and another sued Ozyjiwsky and others in the Supreme Court of Queensland. The plaintiffs sought damages for breach of statutory duty, negligence, and misleading and deceptive conduct under the Australian Consumer Law. The defendants appealed against a judgment in favour of the plaintiffs, which was affirmed by the Court of Appeal. The appeal was then brought to the High Court.

The legal issues before the court were whether the Supreme Court had correctly interpreted the statutory provisions governing the breach of statutory duty, whether the plaintiffs had proved causation in their negligence claim, and whether the plaintiffs had established misleading and deceptive conduct under the Australian Consumer Law. The defendants argued that the plaintiffs had failed to establish causation in their negligence claim, that the plaintiffs' misleading and deceptive conduct claim should have failed as it was not made out on the balance of probabilities, and that the statutory provisions governing the breach of statutory duty were not correctly interpreted.

The court held that the plaintiffs had established causation in their negligence claim and that the misleading and deceptive conduct claim was made out on the balance of probabilities. The court also held that the statutory provisions governing the breach of statutory duty were correctly interpreted. The appeal was dismissed.

The orders of the Supreme Court and the Court of Appeal were affirmed. The plaintiffs were entitled to recover damages from the defendants for breach of statutory duty, negligence, and misleading and deceptive conduct.

Orders