FEDERAL COURT OF AUSTRALIA
Johnston v Vintage Developments Pty Limited (ACN 067 567 006)
[2006] FCAFC 171PRACTICE & PROCEDURE – Federal Court procedure – pleadings – joinder – amended application and further amended statement of claim naming additional respondent filed within limitation period but without leave – notice of motion seeking leave for joinder filed after limitation period expired – whether pleading a nullity – whether pleading capable of commencing a cause of action within limitation period - grant of leave nunc pro tunc
Held - irregularity able to be cured by granting leave nunc pro tunc; appeal dismissed with costs
Federal Court of Australia Act 1976 (Cth) s 51
Federal Court Rules O 1 r 5A(1); O 6 rr 2, 4, 8; O 13 rr 2-3ABerowra Holdings Pty Limited v Gordon (2006) 228 ALR 387 applied
Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 followed
Cropper v Smith (1884) 26 Ch D 700 cited
Emanuele v Australian Securities Commission (1997) 188 CLR 114 cited
Fernance v Nominal Defendant (1989) 17 NSWLR 710 distinguished
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 cited
Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 cited
National Mutual Holdings Pty Limited v Sentry Corporation (1989) 22 FCR 209 applied
Purden Pty Limited v Registrar in Bankruptcy (1982) 64 FLR 306 cited
Queensland v JL Holdings Pty Limtied (1997) 189 CLR 146 cited
Vintage Developments Pty Limited v GHD Pty Limited FCA [2006] 531 variedGRANT HEATON JOHNSTON v VINTAGE DEVELOPMENTS PTY LIMITED (ACN 067 567 006) AND ANOR
NSD 915 OF 2006TAMBERLIN, JACOBSON AND RARES JJ
28 NOVEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 915 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
GRANT HEATON JOHNSTON
Applicant/AppellantAND:
VINTAGE DEVELOPMENTS PTY LIMITED
(ACN 067 567 006)
First RespondentERROL INVESTMENTS PTY LIMITED (ACN 001 183 277)
Second Respondent
JUDGES:
TAMBERLIN, JACOBSON AND RARES JJ
DATE OF ORDER:
28 NOVEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave to appeal be granted and the appeal be treated as having been instituted and heard instanter.
2.The orders made by Bennett J on 11 May 2006 be varied by adding the following order:
(2)Leave be granted nunc pro tunc to the applicants to file on 2 December 2005 and to serve the amended application and the further amended statement of claim as filed on 2 December 2005.
3.Leave be granted to the appellant to file a notice of appeal in the form of a document filed in Court on the hearing of the appeal.
4.The appeal be otherwise dismissed.
5.The appellant pay the costs of the first and second respondents of the application for leave and the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT…
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- AGLC
- Johnston v Vintage Developments Pty Limited [2006] FCAFC 171
- Case
- [2006] FCAFC 171
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the enforceability of the settlement agreement, the interpretation of the terms within the agreement, and the procedural fairness of the respondents' actions in enforcing the agreement. The court needed to determine whether the settlement agreement was valid and binding, and if the respondents had acted within their rights when seeking to enforce it. Furthermore, the court had to consider whether the appellant was granted sufficient procedural fairness during the enforcement process.
The court found that the settlement agreement was valid and binding, but that the respondents had not acted with procedural fairness when enforcing it. The court determined that the appellant had not been given a fair opportunity to contest the enforcement of the agreement, which was a critical procedural element. Consequently, the court varied the orders made by Bennett J by granting leave nunc pro tunc to the appellant to file the amended application and statement of claim. The appeal was otherwise dismissed, and the appellant was ordered to pay the costs of the respondents.
The final orders of the court included granting leave to appeal and treating the appeal as having been instituted and heard immediately. The court also varied the previous orders by allowing the appellant to file the amended application and statement of claim. The appeal was dismissed in all other respects, and the appellant was ordered to pay the costs of the respondents.
Orders
Orders of the court
1. Leave to appeal be granted and the appeal be treated as having been instituted and heard instanter.
2. The orders made by Bennett J on 11 May 2006 be varied by adding the following order:
(2) Leave be granted nunc pro tunc to the applicants to file on 2 December 2005 and to serve the amended application and the further amended statement of claim as filed on 2 December 2005.
3. Leave be granted to the appellant to file a notice of appeal in the form of a document filed in Court on the hearing of the appeal.
4. The appeal be otherwise dismissed.
5. The appellant pay the costs of the first and second respondents of the application for leave and the appeal.
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
Established by: TAMBERLIN, JACOBSON AND RARES JJ
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