George Stanley Copping (Plaintiff L), Faye Joyce Copping, Layton Saxon Copping, Neville George Copping, Wayne Malcolm Copping and Perball Pty Ltd v ANZ McCaughan Ltd (Defendant 1), Galliott Pty Ltd (Third Party 1), - [1994] SASC 4784

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice and procedure - costs - appeal as to costs - Following the trial, the defendant, against whom an order for costs had been made, lodged a cross-appeal as to costs only, without first obtaining leave under Supreme Court Act 1935s.50(2) (b) - a subsequent application for leave made to the trial Judge was refused and the notice of appeal, to the extent that it related to costs, was struck out - the defendant lodged a further purported notice of appeal to the Full Court against the striking out of the earlier notice, on the ground that the appeal lay as of right - application by the plaintiffs to strike out the further notice of appeal as incompetent - questions directed to be argued before the Full Court. Supreme Court Act 1935 ss 49 and 50; Supreme Court Judicature Act (UK) (1873) (36 and 37 Vict) Ch 66, s49; Supreme Court Judicature (Consolidation) Act 1925 (UK) s31(1); Supreme Court Practice (Victoria) (Butterworths) (1973) 58.1.22(b); Supreme Court Act (NSW) 1970 s101(2) (c) and Supreme Court Rules 84.12, 94.02, 94.03, 95.08, 97.02(1). Donald Campbell and Co Ltd v Pollak (1927) AC 732; Bank of Australasia v Herrick (1886) 12 VLR 832; Snelling v Pulling (1885) 29 Ch D 85; Trams Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312; House v The King
(1936) 55 CLR 499; Cretazso v Lombardi (1975) 13 SASR 4; Rieben v Justices for the Yorke Peninsula District and Ors (PC) (1908) AC 454; Civil Service Co-operative Society Ltd v The General Steam Navigation Company (1903) 2 KB
756 and Southern Resources Ltd and Ors v Residues Treatment and Trading Co Ltd and Ors (1991) 56 SASR 455, considered.

Courts and judges - disqualification of judge - Defendant contended that trial Judge should not hear application to strike out notice of appeal as to costs of the trial - held that no ground which might properly lead to disqualification was made out. Paringa Mining and Exploration Co Pty Ltd v North Flinders Mines Pty Ltd and Ors (No 2) (1988) 81 ALR 609, considered.

HRNG ADELAIDE, 13, 19 September 1994 #DATE 5:10:1994

Counsel for plaintiffs: Mr S Tilmouth QC

Solicitors for plaintiffs: Wallace Degaris and Co by their
agents White Berman and Co

Counsel for defendant: Mr N Rochow with him
Mr D Kennelly

Solicitors for defendant: Knox and Hargrave

Third parties: No appearance

ORDER
Direct, pursuant to Supreme Court Act 1935s.49, that certain points be argued before the Full Court.

JUDGE1 PERRY J This is an application by the plaintiffs to strike out as incompetent a purported appeal by the defendant advanced by a notice of appeal dated 18 August 1994.

2. The purported appeal is against various orders made by me on 11 August 1994 pursuant to which I refused an application for leave to appeal against an order as to the costs of the trial of this…

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

AGLC: George Stanley Copping (Plaintiff L), Faye Joyce Copping, Layton Saxon Copping, Neville George Copping, Wayne Malcolm Copping and Perball Pty Ltd v ANZ McCaughan Ltd (Defendant 1), Galliott Pty Ltd (Third Party 1), [1994] SASC 4784
Case: [1994] SASC 4784
Decision Date: 5 October 1994

CaseChat Overview and Summary

In the Supreme Court of South Australia, the plaintiffs George Stanley Copping, Faye Joyce Copping, Layton Saxon Copping, Neville George Copping, Wayne Malcolm Copping, and Perball Pty Ltd brought a lawsuit against ANZ McCaughan Ltd and Galliott Pty Ltd. The dispute centered on an offshore loan and a hedge contract. After the trial, the plaintiffs were awarded $183,898.62 in damages against ANZ McCaughan Ltd. The court ordered Perball Pty Ltd to recover 75% of its costs, while the individual plaintiffs were not awarded any costs. ANZ McCaughan Ltd cross-appealed the costs order without obtaining leave as required by the Supreme Court Act 1935 s.50(2). The trial judge refused leave to appeal and struck out part of the cross-appeal. ANZ McCaughan Ltd then filed a further notice of appeal against the striking out of the cross-appeal, which the plaintiffs sought to strike out as incompetent. The court found that the initial cross-appeal was correctly struck out for lack of leave. However, it directed that certain points be argued before the Full Court due to the importance of the costs involved and the potential financial implications for ANZ McCaughan Ltd. The court did not find any valid grounds for disqualifying itself from hearing the matter.

Orders