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…

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: [2013] FCA 146
Decision Date: 1 March 2013

CaseChat Overview and Summary

The applicants, Hurd, sought leave to appeal from the judgment of Gordon J, which was handed down on 5 February 2013. The dispute involved a cross-claim made by the respondent, Zomojo Pty Ltd. The matter was heard in the Federal Court of Australia. Hurd also sought leave to rescind certain orders made by Gordon J on the same date concerning the cross-claim.

The legal issues before the court involved the applicants' requests for leave to appeal and to rescind orders. The applicants argued that they had a reasonable prospect of success on appeal and that there were substantial grounds to challenge the orders. The court had to determine whether the applicants' arguments were sufficiently compelling to warrant the granting of leave.

The court considered the applicants' submissions but found them insufficient to warrant the granting of leave. The applicants did not demonstrate a reasonable prospect of success on appeal, and the court was not satisfied that there were substantial grounds to challenge the orders. Consequently, the court refused the applications for leave to appeal and to rescind orders. Additionally, the applicants were ordered to pay the respondents' costs associated with the interlocutory applications.

The court's orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in such circumstances. The applicants' requests for leave were denied, and they were required to pay the respondents' costs for the interlocutory applications.

Orders

Orders of the court

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.

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:		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

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