Garrett v Macks

[2008] FCA 1419

FEDERAL COURT OF AUSTRALIA

Garrett v Macks [2008] FCA 1419

ANDREW MORTON GARRETT v PETER IVAN MACKS and STEPHEN DUNCAN

SAD 101 OF 2008

LANDER J
8 SEPTEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	8 SEPTEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The time within which the application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be extended to 18 July 2008.

2.The application for leave to appeal against the orders made by Justice Lander on 3 July 2008 be dismissed.

3.The applicant pay the costs of the respondents (Peter Macks and Stephen Duncan).

4.The transcript of today’s hearing be made available to the applicant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 101 OF 2008

BETWEEN:

ANDREW MORTON GARRETT
Applicant

AND:

PETER IVAN MACKS
First Respondent

STEPHEN DUNCAN
Second Respondent

JUDGE:	LANDER J
DATE:	8 SEPTEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. Listed before me today, are two applications by Mr Andrew Garrett, who claims to be the trustee of the Garrett Family Trust.  He seeks an extension of time within which to apply for leave to appeal from orders made by me on 3 July 2008 and leave to appeal from those orders.  On 3 July 2008 I dismissed an application by Mr Garrett to be joined as a party to action number SAD5 of 2006, in his capacity as the sole trustee of the Garrett Family Trust.  I did so because I was not satisfied on the evidence which was then before me that the Garrett Family Trust had ever existed prior to the date of the application.

2. I found that the Garrett Family Trust, when used in the transactional documents which had been the subject of a number of transactions, was, in fact a reference to the Andrew Garrett Family Trust which was already a party to the action to which Mr Garrett sought to be joined.

3. The applicant requires an extension of time within which to apply for leave to appeal because he did not file his application for leave to appeal within the seven days as required by O 52 r 10 of the Federal Court Rules.  His evidence is that he sought to lodge the application on 14 July, believing that he was entitled to lodge the application in the Western Australian Registry when he was told that the application needed to be lodged in this Registry.

4. Of course, as it has been pointed out, whether he lodged the application in any Registry of the Federal Court by 14 July 2008 he was already out of time.  However, the respondents to the application, who are Mr Garrett’s and his wife, Averil Garrett’s respective…