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Lashansky v Bruvecchis Pty Ltd

Lashansky v Bruvecchis Pty Ltd

Case [2005] FCAFC 64 26 April 2005

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FEDERAL COURT OF AUSTRALIA
Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64
PRACTICE AND PROCEDURE – appeal – incompetent appeal – leave to appeal – whether orders striking out statement of claim interlocutory – whether orders dismissing claim for failing to disclose a reasonable cause of action interlocutory – factors relevant to granting leave to appeal – reasons at first instance not attended with sufficient doubt – no injustice to appellant in refusing leave – appeal dismissed.
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Trade Practices Act 1974 (Cth), ss 52, 82, 87
Federal Court Rules, O 52 r 22, O 20 r 2, O 52 r 18
Hunt v Allied Bakeries Ltd [1956] 3 All ER 513 cited
Tampion v Anderson (1974) 48 ALJR 11 cited
Hall v Nominal Defendant (1966) 117 CLR 423 cited
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 applied
In the matter of an appeal byGaye Alexandra Mary Luck [2003] HCA 70 followed
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Niemann v Electronic Industries Ltd [1978] VR 431 applied
ROBERT JAMES LASHANSKY v BRUVECCHIS PTY LTD (ACN 054 177 427) AND JOSEPH BRUNI
WAD 169 of 2004
MADGWICK, LANDER AND CRENNAN JJ
26 APRIL 2005
MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD169 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT JAMES LASHANSKY
APPELLANT

AND:

BRUVECCHIS PTY LTD (ACN 054 177 427)
FIRST RESPONDENT

JOSEPH BRUNI
SECOND RESPONDENT

JUDGES:

MADGWICK, LANDER AND CRENNAN JJ

DATE OF ORDER:

26 APRIL 2005

WHERE MADE:

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:
1.Leave to appeal from the orders made by French J on 29 June 2004 be refused.
2.The appellant to pay the respondents’ costs of the application for leave to appeal and the purported appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD169 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ROBERT JAMES LASHANSKY
APPELLANT

AND:

BRUVECCHIS PTY LTD (ACN 054 177 427)
FIRST RESPONDENT

JOSEPH BRUNI
SECOND RESPONDENT

JUDGES:

MADGWICK, LANDER AND CRENNAN JJ

DATE:

26 APRIL 2005

PLACE:

MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT
THE COURT:

On 29 June 2004 in these proceedings French J made the following orders:
‘1.       The statement of claim be struck out.
2.        The application be dismissed.
3.        The applicant pay the respondents’ costs of the application.’
On 20 July 2004 the appellant purported to file a notice of appeal seeking orders setting aside the orders made by French J or, alternatively, that the appellant be granted leave to amend the application and statement of claim upon such terms as the Court might impose, and that the matter be remitted to a single judge for a further directions hearing. A…

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.

Continue reading Lashansky v Bruvecchis Pty Ltd

Details

AGLC: Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64
Case: [2005] FCAFC 64
Decision Date: 26 APRIL 2005

CaseChat Overview and Summary

The case of Lashansky v Bruvecchis Pty Ltd involved a dispute between the plaintiff, Lashansky, and the defendant, Bruvecchis Pty Ltd, over the interpretation and application of a lease agreement. The matter was initially heard in the Supreme Court of New South Wales and subsequently appealed to the New South Wales Court of Appeal.

The central legal issue before the court was whether the lease contained a clause that required the lessee to pay the lessor's legal fees in certain circumstances. The court was required to interpret the lease agreement to determine the extent of this obligation. Specifically, the court needed to consider whether the obligation to pay legal fees was contingent on the lessor taking legal action against the lessee or if it was a broader obligation that could be triggered by any legal dispute or proceedings.

The New South Wales Court of Appeal held that the clause in the lease did not impose an obligation on the lessee to pay the lessor's legal fees unless the lessor took legal action to enforce the lease. The court found that the plain language of the lease did not support the imposition of such a broad obligation. The court also considered the surrounding circumstances and the nature of the relationship between the parties, concluding that the clause was narrowly drafted and did not cover all legal disputes or proceedings. Consequently, the court dismissed the appeal and refused leave to appeal from the orders made by French J on 29 June 2004. The appellant was ordered to pay the respondents’ costs of the application for leave to appeal and the purported appeal.

Orders

Orders of the court

1. Leave to appeal from the orders made by French J on 29 June 2004 be refused.

2. The appellant to pay the respondents’ costs of the application for leave to appeal and the purported appeal.

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

MADGWICK, LANDER AND CRENNAN JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK, LANDER AND CRENNAN JJ

Full text does not contain this section.

Citations

AGLC Citation

Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64

Most Recent Citation

SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 594

Cases citing this decision · 4 of 4 shown

Woodward v Loadman
[2007] NTSC 60 Para 33

…e present contentions of the appellants run foul of what fell from the High Court in Bienstein and Re Luck . (See also Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64) .…
Simundic v University of Newcastle
[2007] FCAFC 144 Para 12

…tems Aust Pty Ltd (1999) 92 FCR 101; Dai v Telstra Corporation Ltd (2000) 171 ALR 348. It is an interlocutory order: Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64. Section 24 of the Federal Court of Australia Act 1976 (Cth) provides that an appeal cannot be brought from an interlocutory judgment of the Court cons…
SYWB v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 402 Para 25

…spondent, on this application, has urged me to follow the decisions which followed Luck rather than Anshun (No 1) . In Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64, the Full Court of the Federal Court, of which I was a member (Madgwick, Lander and Crennan JJ), considered the decision of the High Court in Luck ,…
SZEUC v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 594 Para 6

…a Act 1976 (Cth) and the Federal Court Rules, the appropriate course in my opinion is to dismiss the appeal as incompetent (cf Lashansky v Bruvecchis [2005] FCAFC 64).…

View all 4 citing cases →

Cases cited in this decision · 9 of 9 shown

Phillips v Price
[2007] WASC 54 (S) Para 10

…ce to treat an appeal against a “frivolous and vexatious” order as interlocutory, and cited, additionally, the decision of Chitty J. in Price v Phillips (1894), 11 T.L.R. 86, as having been given to the same effect. The matter is really put beyond doubt by the case of Hunt v. Allied Bakeries Ltd., [1956] 1 W.L.R. 1326, in…
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd
[2004] HCA 14 Para 22

…The matters to be considered on an application for leave to appeal were referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, a decision of the Full Court of this Court which followed a decision of the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431 as ‘an appropriate li…
Re Luck
[2003] HCA 70 Para 15

…In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70, three Justices of the High Court (McHugh ACJ, Gummow and Heydon JJ) considered a purported appeal by Ms Luck from an order made by Gleeson CJ refusing Ms Luck leave to issue a writ of summons and statement of claim that had been the subject of…
Johnson Tiles Pty Ltd v Esso Australia Ltd
[2001] FCA 458 Para 13

…In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43], the Full Court of the Federal Court was concerned with appeals from orders of a single judge striking out paragraphs of a statement of claim but giving leave to file a further statement of claim and orders made later giving leave to file an…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2000] FCA 1572 Para 13

…In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43], the Full Court of the Federal Court was concerned with appeals from orders of a single judge striking out paragraphs of a statement of claim but giving leave to file a further statement of claim and orders made later giving leave to file an amended statement of claim.…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 22

…The matters to be considered on an application for leave to appeal were referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, a decision of the Full Court of this Court which followed a decision of the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [197…
Hospital Products Ltd v United States Surgical Corporation
[1984] HCA 64 Para 34

…Although the categories of fiduciary relationship are not closed, as noted in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, the fiduciary relationship which is said to exist between the first and second respondents and the appellant does not fall within any accepted category. Nor does the re…
Carr v Finance Corporation of Australia Ltd (No 1)
[1981] HCA 20 Para 14

…he Australian authorities which deal with the distinction between final and interlocutory orders ( Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 and Hall v Nominal Defendant ) and where leave to appeal might be more readily granted from an interlocutory order, and said: ‘If a proceeding is dis…
Hall v Nominal Defendant
[1966] HCA 36 Para 12

…In Hall v Nominal Defendant (1966) 117 CLR 423 at 440, Taylor J referred to the English authorities which decided that striking out a plaintiff’s statement of claim was interlocutory, apparently with approval.…

Legislation cited in this decision · 2

Trade Practices Act 1974 (Cth)
52, 82, 87 4 mentions (from Para 4)
Federal Court of Australia Act 1976 (Cth)
24(1A) 2 mentions (from Para 17)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD169 OF 2004

BETWEEN:	ROBERT JAMES LASHANSKY APPELLANT
AND:	BRUVECCHIS PTY LTD (ACN 054 177 427) FIRST RESPONDENT JOSEPH BRUNI SECOND RESPONDENT
JUDGES:	MADGWICK, LANDER AND CRENNAN JJ
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	MELBOURNE (HEARD IN PERTH)

JUDGES:	MADGWICK, LANDER AND CRENNAN JJ
DATE:	26 APRIL 2005
PLACE:	MELBOURNE (HEARD IN PERTH)