Hurd v Zomojo Pty Ltd (No 2)

[2013] FCA 146

FEDERAL COURT OF AUSTRALIA

Hurd v Zomojo Pty Ltd (No 2) [2013] FCA 146

Citation:

Hurd v Zomojo Pty Ltd (No 2) [2013] FCA 146

Parties:

MATTHEW HURD, ZEPTONICS PTY LTD
(ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864) v ZOMOJO PTY LTD (ACN 114 604 269) and ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)

MATTHEW HURD,  JOLENE (TAS) PTY LTD (ACN 082 267 516) and HURD FAMILY SUPERANNUATION FUND v ZOMOJO PTY LTD (ACN 114 604 269)

File number:

VID 104 of 2013

Judge:

MARSHALL J

Date of judgment:

1 March 2013

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to appeal – leave to appeal refused

Cases cited:

Hurd v Zomojo Pty Ltd [2013] FCA 145
Shannon v Commonwealth Bank of Australia [2012] FCA 1378
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458
Zomojo Pty Ltd v Hurd (No 3) [2013] FCA 54

Date of hearing:

26 February 2013

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

7

Mr M Hurd appeared in person and also for the Hurd Family Superannuation Fund

Counsel for the Respondents:

Dr M Collins SC with Dr M Sharpe

Solicitor for the Respondents:

Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 104 of 2013

BETWEEN:

MATTHEW HURD
First Applicant

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Applicant

CROSSWISE PTY LTD (ACN 140 717 317)
Third Applicant

MD HAMMER PTY LTD (ACN 149 869 189)
Fourth Applicant

ZEPTO MARKETS PTY LTD (ACN 150 529 301)
Fifth Applicant

ZEPTO FABRICS PTY LTD (ACN 156 138 000)
Sixth Applicant

ZEPTOIP PTY LTD (ACN 156 133 087)
Seventh Applicant

TRADEMACH PTY LTD (ACN 155 683 864)
Eighth Applicant

AND:

ZOMOJO PTY LTD (ACN 114 604 269)
First Respondent

ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)
Second Respondent

BETWEEN:

MATTHEW HURD
First Applicant

JOLENE (TAS) PTY LTD (ACN 082 267 516)
Second Applicant

HURD FAMILY SUPERANNUATION FUND
Third Applicant

AND:

ZOMOJO PTY LTD (ACN 114 604 269)
Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	26 FEBRUARY 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Leave is refused to extend the time within which to apply for leave to appeal from the judgment of Gordon J of 5 February 2013.

2.Leave is refused to extend the time within which to apply for leave to rescind orders made by Gordon J on 5 February 2013 with respect to a cross-claim.

3.The applicants for leave pay the respondents’ costs of and associated with all interlocutory applications before the Court on 26 February 2013.

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 104 of 2013

BETWEEN:

MATTHEW HURD
First Applicant

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Applicant

CROSSWISE PTY LTD (ACN 140 717 317)
Third Applicant

MD HAMMER PTY LTD (ACN 149 869 189)
Fourth Applicant

ZEPTO MARKETS PTY LTD (ACN 150 529 301)
Fifth Applicant

ZEPTO FABRICS PTY LTD (ACN 156 138 000)
Sixth Applicant

ZEPTOIP PTY LTD (ACN 156 133 087)
Seventh Applicant

TRADEMACH PTY LTD (ACN 155 683 864)
Eighth Applicant

AND:

ZOMOJO PTY LTD (ACN 114 604 269)
First Respondent

ZOMOJO STAFF HOLDINGS PTY LTD (ACN 149 645 134)
Second Respondent

BETWEEN:

MATTHEW HURD
First Applicant

JOLENE (TAS) PTY LTD (ACN 082 267 516)
Second Applicant

HURD FAMILY SUPERANNUATION FUND
Third Applicant

AND:

ZOMOJO PTY LTD (ACN 114 604 269)
Respondent

JUDGE:	MARSHALL J
DATE:	1 MARCH 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. These reasons for judgment deal with three interlocutory applications which were advanced by Mr Matthew Hurd, the first applicant, on his own behalf. These reasons should be read in conjunction with the reasons also published today concerning a failed application by Mr John Hurd for leave to appear for the applicant companies; see Hurd v Zomojo Pty Ltd [2013] FCA 145.

2. On 26 February 2013, the Court refused to extend the time necessary to permit two interlocutory applications before it (seeking leave to appeal) to be filed out of time. The applications were only filed two days late but as each application was bound to fail, there was no utility in permitting an extension of time.

3. The first such application was one by Mr Matthew Hurd for leave to appeal from the judgment and orders of Gordon J of 19 December 2012 and 5 February 2013 respectively. The well established test for whether leave to appeal against an interlocutory decision should be granted was succinctly stated by Buchanan J in Shannon v Commonwealth Bank of Australia [2012] FCA 1378 at [12]. It is:

   [w]hether the decision is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong…

4. Senior Counsel for the respondents acknowledged that all issues that Mr Matthew Hurd sought to raise by way of an interlocutory appeal could be ventilated by him in any appeal from final orders made by Gordon J after a further hearing dealing with the question of damages. That hearing is scheduled to be held in July 2013.

5. In any event, after considering the proposed grounds of appeal and the primary judge’s reasons for judgment published on 19 December 2012, I was not convinced that her Honour’s decision was attended with sufficient doubt to warrant its reconsideration. No substantial injustice to Mr Matthew Hurd would arise as a result of leave to appeal being refused.

6. Mr Matthew Hurd also sought a stay of certain of the orders made by Gordon J which required action by the applicant companies by 4.00 pm on 26 February 2013. He conceded that none of the matters there referred to required him personally to take any step. Consequently, the Court formed the view that there was no utility in granting a stay. In any event, an extension of time for leave to appeal having been refused, there was no jurisdictional basis on which to found the operation of any stay.

7. Mr Matthew Hurd also represented himself and the Hurd Family Superannuation Fund in their interlocutory application to set aside her Honour’s dismissal of their cross-claim. Leave was refused to extend the time to file that application. That is an issue which Mr Matthew Hurd and the Fund may seek to advance in any appeal which may be lodged at the conclusion of the primary judge’s dealing with the proceeding.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       1 March 2013