Gippsreal Ltd v Hausfeld Johnson Pty Ltd - [2012] FCA 956

FEDERAL COURT OF AUSTRALIA
Gippsreal Ltd v Hausfeld Johnson Pty Ltd [2012] FCA 956

Citation: Gippsreal Ltd v Hausfeld Johnson Pty Ltd [2012] FCA 956

Parties: GIPPSREAL LTD (ACN 005 443 292) v HAUSFELD JOHNSON PTY LTD (ACN 097 641 122), GREGORY HAUSFELD, NEIL KEITH EVERSON, TREVOR JOHN RICKARD (T/AS OAKLEYS LEGAL) and DAWES & VARY PTY LTD (ACN 005 380 352)

File number: VID 243 of 2009

Judge: MURPHY J

Date of judgment: 3 September 2012

Catchwords: PRACTICE AND PROCEDURE – Leave to amend defence – filing defence without seeking leave to amend – proportionate liability – requirement for joinder of parties – effect of joinder on trial date

Legislation: Civil Liability Act 2002 (NSW)
Corporations Act 2001 (Cth)
Fair Trading Act 1987 (NSW)
Federal Court of Australia Act 1976 (Cth)
Trade Practices Act 1974 (Cth)
Wrongs Act 1958 (Vic)

Cases cited: Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450
Elliott & Tuthill (Mortgages) Pty Ltd v Farrell & Anderson Pty Ltd [2002] FCA 965
O D Transport (Australia) Pty Ltd (in liquidation) v O D Transport Pty Ltd [1998] FCA 1653
Shrimp v Landmark Operations Ltd [2007] FCA 1468

Date of hearing: 28 August 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 42

Counsel for the Applicant: Mr C R Brown

Counsel for the First and Second Respondents: Dr T McEvoy

Solicitor for the First and Second Respondents: DLA Piper

Counsel for the Third, Fourth and Fifth Respondents: The Third, Fourth and Fifth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 243 of 2009

BETWEEN:
GIPPSREAL LTD (ACN 005 443 292)
Applicant

AND:
HAUSFELD JOHNSON PTY LTD (ACN 097 641 122)
First Respondent

GREGORY HAUSFELD
Second Respondent

NEIL KEITH EVERSON
Third Respondent

TREVOR JOHN RICKARD (T/AS OAKLEYS LEGAL)
Fourth Respondent

DAWES & VARY PTY LTD (ACN 005 380 352)
Fifth Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

3 SEPTEMBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Leave is granted to the first and second respondents to amend their Defence in the form of the Defence dated 17 August 2012.
2.The following persons be joined as respondents to the proceeding:
(a)Colin Andrew McKenzie-McHarg;
(b)Kevin John Cousins; and
(c)Tristan David Morton-Pederson.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 243 of 2009

BETWEEN:
GIPPSREAL LTD (ACN 005 443 292)
Applicant

AND:
HAUSFELD JOHNSON PTY LTD (ACN 097 641 122)
First Respondent

GREGORY HAUSFELD
Second Respondent

NEIL KEITH EVERSON
Third Respondent

TREVOR JOHN RICKARD (T/AS OAKLEYS LEGAL)
Fourth Respondent

DAWES & VARY PTY LTD (ACN 005 380 352)
Fifth Respondent

JUDGE:

MURPHY J

DATE:

3 SEPTEMBER 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This proceeding is a claim for damages brought by the applicant, Gippsreal Pty Ltd , the responsible entity of the Gippsreal Mortgage Investment Scheme (“the Scheme”), against real estate valuers, Hausfeld Johnson Pty…

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: [2012] FCA 956
Decision Date: 3 September 2012

CaseChat Overview and Summary

Gippsreal Ltd initiated proceedings against Hausfeld Johnson Pty Ltd, asserting claims for proportionate liability. The defendants, in turn, filed a defence without seeking leave to amend it. The Federal Court was required to decide whether leave should be granted to the defendants to amend their defence and whether additional parties should be joined to the proceeding. The court's reasoning focused on the necessity of the amendments and joinder for the fair and just resolution of the claims. It concluded that the amendments were necessary to properly address the claims and that the additional parties were essential to ensure proportionate liability was fairly assessed. Consequently, the court granted leave for the defendants to amend their defence and ordered the joinder of three additional respondents. The court's orders were intended to ensure that the proceeding could proceed in a manner that was fair and just to all parties involved.

Orders

Orders of the court

1. Leave is granted to the first and second respondents to amend their Defence in the form of the Defence dated 17 August 2012.

2. The following persons be joined as respondents to the proceeding:

(a) Colin Andrew McKenzie-McHarg;

(b) Kevin John Cousins; and

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Gippsreal Ltd v Hausfeld Johnson Pty Ltd [2012] FCA 956
Parties:		GIPPSREAL LTD (ACN 005 443 292) v HAUSFELD JOHNSON PTY LTD (ACN 097 641 122), GREGORY HAUSFELD, NEIL KEITH EVERSON, TREVOR JOHN RICKARD (T/AS OAKLEYS LEGAL) and DAWES & VARY PTY LTD (ACN 005 380 352)
File number:		VID 243 of 2009
Judge:		MURPHY J
Date of judgment:		3 September 2012
Catchwords:		PRACTICE AND PROCEDURE – Leave to amend defence – filing defence without seeking leave to amend – proportionate liability – requirement for joinder of parties – effect of joinder on trial date
Legislation:		Civil Liability Act 2002 (NSW) Corporations Act 2001 (Cth) Fair Trading Act 1987 (NSW) Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) Wrongs Act 1958 (Vic)
Cases cited:		Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450 Elliott & Tuthill (Mortgages) Pty Ltd v Farrell & Anderson Pty Ltd [2002] FCA 965 O D Transport (Australia) Pty Ltd (in liquidation) v O D Transport Pty Ltd [1998] FCA 1653 Shrimp v Landmark Operations Ltd [2007] FCA 1468
Date of hearing:	28 August 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Applicant:	Mr C R Brown
Counsel for the First and Second Respondents:	Dr T McEvoy
Solicitor for the First and Second Respondents:	DLA Piper
Counsel for the Third, Fourth and Fifth Respondents:	The Third, Fourth and Fifth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 243 of 2009

JUDGE:	MURPHY J
DATE OF ORDER:	3 SEPTEMBER 2012
WHERE MADE:	MELBOURNE

JUDGE:	MURPHY J
DATE:	3 SEPTEMBER 2012
PLACE:	MELBOURNE