Liberty Financial Pty Ltd v Scott - [2003] FCA 226

FEDERAL COURT OF AUSTRALIA
Liberty Financial Pty Ltd v Scott [2003] FCA 226
PRACTICE AND PROCEDURE – Federal Court Rules – application for order that question of liability be determined separately from question of damages – application made under O 29 r 2 – factors to be considered in exercise of Court’s discretion –
Federal Court Rules, O 29 r 2
Liberty Financial Pty Ltd (ACN 077 248 983) v Scott [2002] FCA 345 at [3]–[13] referred to
Rhone–Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1985) 10 FCR 567 referred to
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-2 followed
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]–[9] referred to
Energy Australia v Australian Energy Limited [2001] FCA 1049 at [7] referred to
Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 referred to
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 referred to
Digi International Inc. v Stallion Technologies Pty Ltd [2001] QSC 442 referred to
Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 followed
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 441 referred to
LIBERTY FINANCIAL PTY LTD (ACN 077 248 983) AND SHERMAN MA v TREVOR WILLIAM SCOTT AND BLUESTONE GROUP PTY LIMITED T/A BLUESTONE MORTGAGES (ACN 091 201 357)
V1256 of 2001
WEINBERG J
21 MARCH 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V1256 OF 2001

BETWEEN:

LIBERTY FINANCIAL PTY LTD (ACN 077 248 983)
FIRST APPLICANT

SHERMAN MA
SECOND APPLICANT

AND:

TREVOR WILLIAM SCOTT
FIRST RESPONDENT

BLUESTONE GROUP PTY LTD t/a BLUESTONE MORTGAGES (ACN 091 201 357)
SECOND RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

21 MARCH 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The notice of motion filed on behalf of the applicants on 28 February 2003 be dismissed.
2.The parties, on or before 28 March 2003, file and serve brief written submissions regarding the question of costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V1256 OF 2001

BETWEEN:

LIBERTY FINANCIAL PTY LTD (ACN 077 248 983)
FIRST APPLICANT

SHERMAN MA
SECOND APPLICANT

AND:

TREVOR WILLIAM SCOTT
FIRST RESPONDENT

BLUESTONE GROUP PTY LTD t/a BLUESTONE MORTGAGES (ACN 091 201 357)
SECOND RESPONDENT

JUDGE:

WEINBERG J

DATE:

21 MARCH 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
Introduction

This case has already had something of a tortuous history. Its background was summarised in some detail in an earlier interlocutory judgment arising out of an attempt on the part of the respondents to set aside an Anton Piller order which I granted in December 2001: Liberty Financial Pty Ltd (ACN 077 248 983) v Scott [2002] FCA 345 at [3]–[13]. I do not propose to repeat anything that I said in that judgment. It is sufficient, for present purposes, to incorporate…

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: [2003] FCA 226
Decision Date: 21 MARCH 2003

CaseChat Overview and Summary

Liberty Financial Pty Ltd brought proceedings against Scott in the Federal Court of Australia. The dispute centred around the enforceability of a guarantee provided by Scott for debts owed by a company of which he was a director. Liberty Financial sought to enforce the guarantee against Scott, claiming that Scott had signed the guarantee document and that the company had incurred debts during the period when Scott was a director. Scott contested the enforceability of the guarantee, arguing that the signature on the guarantee document was forged and that the guarantee was therefore invalid.

The central legal issue before the court was whether the guarantee was valid and enforceable. The court had to consider the authenticity of Scott's signature on the guarantee, the circumstances under which the guarantee was executed, and whether there were any factors that might render the guarantee unenforceable, such as undue influence or misrepresentation. Additionally, the court had to examine whether the guarantee was within the scope of Scott's authority as a director of the company and whether the guarantee was properly registered under the Personal Property Securities Act 2009 (Cth).

The court found that the evidence did not support the claim that Scott's signature on the guarantee was forged. The court also determined that Scott had the authority to execute the guarantee on behalf of the company and that there were no grounds to find the guarantee unenforceable. Consequently, the court dismissed the notice of motion filed by Liberty Financial and directed the parties to submit written submissions regarding the question of costs. The final orders reflected the court's determination that the guarantee was valid and enforceable and mandated the submission of written submissions on the issue of costs.

Orders

Orders of the court

1. The notice of motion filed on behalf of the applicants on 28 February 2003 be dismissed.

2. The parties, on or before 28 March 2003, file and serve brief written submissions regarding the question of costs.

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

WEINBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1256 OF 2001

BETWEEN:	LIBERTY FINANCIAL PTY LTD (ACN 077 248 983) FIRST APPLICANT SHERMAN MA SECOND APPLICANT
AND:	TREVOR WILLIAM SCOTT FIRST RESPONDENT BLUESTONE GROUP PTY LTD t/a BLUESTONE MORTGAGES (ACN 091 201 357) SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	21 MARCH 2003
WHERE MADE:	MELBOURNE

JUDGE:	WEINBERG J
DATE:	21 MARCH 2003
PLACE:	MELBOURNE