FEDERAL COURT OF AUSTRALIA
Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCA 797
Citation: Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCA 797 Parties: INTELLEC DEVELOPMENT GROUP PTY LTD v 3D FUNTIMES LTD File number: WAD 156 of 2011 Judge: BARKER J Date of judgment: 30 May 2011 Catchwords: PRACTICE AND PROCEDURE - leave to appeal from interlocutory judgment to dismiss application to set aside summary judgment - where application for leave to appeal lodged out of time
PRACTICE AND PROCEDURE - application for stay pending the determination of the application for leave to appeal and any appeal if allowedCases cited: 3D Funtimes Limited v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407
Décor Corporation v Dart Industries Incorporated (1991) 33 FCR 397Date of hearing: 30 May 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr AJ Goldfinch Solicitor for the Applicant: Stables Scott Counsel for the Respondent: Mr DW Thompson Solicitor for the Respondent: Mr DW Thompson
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 156 of 2011
BETWEEN: INTELLEC DEVELOPMENT GROUP PTY LTD
ApplicantAND: 3D FUNTIMES LTD
RespondentJUDGE:
BARKER J
DATE OF ORDER:
30 MAY 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant be granted an extension of time until 13 May 2011 in which to seek leave to appeal from the interlocutory judgment of the Court pronounced by Justice Siopis on 21 April 2011 at Perth in WAD 348 of 2010.
2.The applicant have leave to appeal from the interlocutory judgment of the Court pronounced by Justice Siopis on 21 April 2011 at Perth in WAD 348 of 2010.
3.The application for a stay pending the appeal be dismissed on the undertaking of the respondent (now Tier Toys Ltd) in these terms:
(a)in the event that the respondent forms an intention to sell the tooling or remove it from Western Australia it will not do so without first giving the applicant 21 days written notice of its intention to do so;
(b)in the event that the applicant succeeds on appeal the respondent will return the tooling to the applicant; and
(c)if the same appeal succeeds the respondent will not plead or rely on any argument that any unpaid seller’s lien enjoyed by the applicant has been lost by reason of the applicant’s delivery of the tooling to the respondent.
4.Costs be reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 156 of 2011
BETWEEN: INTELLEC DEVELOPMENT GROUP PTY LTD
ApplicantAND: 3D FUNTIMES LTD
Respondent
JUDGE:
BARKER J
DATE:
30 MAY 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
APPLICATIONS BEFORE THE COURT
There are two applications before the Court. One is a notice of…
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- Case
- [2011] FCA 797
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances under which the application for leave to appeal was lodged beyond the stipulated time. Despite the late filing, the court acknowledged the procedural error and granted an extension of time for the application to be made. The court also addressed the application for a stay pending the appeal, noting the importance of maintaining the status quo to avoid potential prejudice to either party. The court dismissed the application for an unconditional stay but agreed to a conditional stay. This conditional stay required the respondent to provide notice and refrain from selling or removing the tooling from Western Australia, return the tooling if the appeal succeeded, and not argue that the seller’s lien was lost if the appeal succeeded.
In its ruling, the court granted the extension of time for the appeal application, allowed the appeal, and dismissed the unconditional stay application but granted a conditional stay. The court's decision underscores the importance of procedural timeliness while also considering the practical implications for both parties. The costs of the application were reserved for a later determination. This nuanced approach reflects a balanced consideration of procedural rules and equitable outcomes.
Orders
Orders of the court
1. The applicant be granted an extension of time until 13 May 2011 in which to seek leave to appeal from the interlocutory judgment of the Court pronounced by Justice Siopis on 21 April 2011 at Perth in WAD 348 of 2010.
2. The applicant have leave to appeal from the interlocutory judgment of the Court pronounced by Justice Siopis on 21 April 2011 at Perth in WAD 348 of 2010.
3. The application for a stay pending the appeal be dismissed on the undertaking of the respondent (now Tier Toys Ltd) in these terms:
(a) in the event that the respondent forms an intention to sell the tooling or remove it from Western Australia it will not do so without first giving the applicant 21 days written notice of its intention to do so;
(b) in the event that the applicant succeeds on appeal the respondent will return the tooling to the applicant; and
(c) if the same appeal succeeds the respondent will not plead or rely on any argument that any unpaid seller’s lien enjoyed by the applicant has been lost by reason of the applicant’s delivery of the tooling to the respondent.
4. Costs be reserved.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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