FEDERAL COURT OF AUSTRALIA
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189
COURTS AND JUDICIAL SYSTEM – appeal – judgment at first instance delivered 22 months after appellant’s witnesses gave evidence – judgment reserved for 17 months –excessive delay – duty of trial judge in those circumstances to give more comprehensive reasons – obligation to show that delay had not affected decision – appellate court required to take delay into account when reviewing findings – primary judge’s reasons inadequate in several material respects – no findings in relation to alternative causes of action – re-trial ordered.
Trade Practices Act 1974 (Cth), ss 82, 87
Fair Trading Act 1989 (Qld) ss 99, 100Fox v Percy (2003) 197 ALR 201 applied
Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 referred to
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 referred to
Bartlem Pty Ltd Cox Industries (Australia) Pty Ltd [2002] FCAFC 224 referred to
Hadid v Redpath [2001] NSWCA 416 applied
R v Maxwell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sperling and Hidden JJ, 23 December 1998) applied
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 referred to
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 referred to
Goose v Wilson Sandford & Co (unreported, England and Wales Court of Appeal (Civil Division), Gibson, Brooke, Mummery LJ, 13 February 1998) applied
Eckersley v Binnie (1988) 18 ConLR 1 applied
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 applied
Customs and Excise Commissioner v A [2003] 2 All ER 736 referred to
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58 referred to
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 referred to
Mifsud v Campbell (1991) 21 NSWLR 725 referred to
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 referred to
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980-1981) 146 CLR 336 referred to
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 referred to
Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 referred to
Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 referred to
Henville v Walker (2001) 206 CLR 459 referred to
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 referred to
John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249 referred to
Bowler v Hilda Pty Ltd (1998) 80 FCR 191 referred to
Heydon v NRMA Ltd (2000) 51 NSWLR 1 referred to
Breen v Williams (1995-1996) 186 CLR 71 referred to
Pilmer v Duke Group Ltd (in Liq) (2001) 207 CLR 165
Hospital Products Ltd v Unites States Surgical Corporation (1984) 156 CLR 41 referred to
Maguire v Makaronis (1996-1997) 188 CLR 449 referred to
Daly v Sydney Stock Exchange Ltd (1985-1986)
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- Case
- [2004] FCAFC 189
- Decision Date
CaseChat Overview and Summary
The legal issues in the case involved the existence of an agreement between the parties, the enforceability of the agreement, and the appropriate costs orders. The court had to determine whether the applicant had established the existence of an agreement and if the dismissal of their claims was justified. Additionally, the court needed to assess the costs orders made by the primary judge.
The court found that the primary judge had erred in dismissing the applicant's claims for relief as against the first and second respondents related to the purchase of the shopping centre property. The court held that the applicant had established the existence of an agreement and that the primary judge's findings on this matter were not open. The court set aside the orders dismissing the applicant's claims and substituted new orders, dismissing the claims as against the third respondent and as against the first and second respondents related to the purchase of the shopping centre property. The court also ordered a new trial of the remaining issues in the proceeding before a different judge. The costs orders were varied, with the first and second respondents to pay 60 per cent of the appellant's costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed in part.
2. Orders 1 and 2 made on 9 October 2003 be set aside and in lieu thereof there be substituted the following orders:
‘1 The proceeding be dismissed so far as concerns:
(a) all claims for relief as against the third respondent, and
(b) all claims for relief as against the first and second respondents related to the purchase by the applicant of the shopping centre property known as ‘Broadway on the Mall’.
2 The applicant pay the first and second respondents’ costs of the part of the proceeding referred to in paragraph 1(b), save and except the costs of the first and second respondents in relation to the issue of an agreement of compromise, on a party and party basis.’
3. There be a new trial of the remaining issues in the proceeding before a different judge.
4. The question of the costs of the trial of the balance of the proceeding at first instance await the outcome of the new trial and be reserved for decision by the judge hearing that trial.
5. The first and second respondents pay 60 per cent of the appellant’s costs 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
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