Linke v TT Builders Pty Ltd - [2014] FCA 672

FEDERAL COURT OF AUSTRALIA
Linke v T T Builders Pty Ltd [2014] FCA 672

Citation: Linke v T T Builders Pty Ltd [2014] FCA 672

Parties: TOBIN JAMES LINKE v T T BUILDERS PTY LTD (ACN 120 541 424), ANTONIO MAURIZIO TESSITORE and HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)

File number: SAD 56 of 2014

Judge: WHITE J

Date of judgment: 25 June 2014

Catchwords: PRACTICE AND PROCEDURE – proceedings transferred from Federal Circuit Court to Federal Court – application for order that fees payable in this Court be reduced to the level applicable in the Federal Circuit Court – consideration of power to reduce fees – application for order pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) that issues be referred to a referee for inquiry and report

Legislation: Australian Consumer Law (Cth) s 18
Building Work Contractors Act 1995 (SA) s 32
Federal Circuit Court of Australia Act 1999 (Cth) s 39
Federal Circuit Court Rules 2001 (Cth) r 8.02
Federal Court and Federal Circuit Court Regulation 2012 (Cth) regs 2.02, 2.03, 2.05, 2.06
Federal Court of Australia Act 1976 (Cth) ss 54A, 60
Federal Court of Australia Regulations 2004 (Cth)
Misrepresentation Act 1972 (SA)

Cases cited: Built Environs Pty Ltd v Saunders International [2012] SASC 111

Date of hearing: 21 May, 6 June 2014

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 46

Counsel for the Applicant: Mr T Grace

Solicitor for the Applicant: Fenwick Elliott Grace

Counsel for the First and Second Respondents: Mr J Mills

Solicitor for the First and Second Respondents: FBR Law

Counsel for the Third Respondent: Mr G Mitchell

Solicitor for the Third Respondent: Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 56 of 2014

BETWEEN:
TOBIN JAMES LINKE
Applicant

AND:
T T BUILDERS PTY LTD (ACN 120 541 424)
First Respondent

ANTONIO MAURIZIO TESSITORE
Second Respondent

HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent

JUDGE:

WHITE J

DATE OF ORDER:

6 JUNE 2014

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for an order that the fees payable in respect of the proceedings in this Court be reduced to the level applicable in the Federal Circuit Court of Australia is refused.
2.The application for an order that certain issues in these proceedings be referred for inquiry and report by an expert, as proposed by the applicant, is refused.
3.Costs be in the cause.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 56 of 2014

BETWEEN:
TOBIN JAMES LINKE
Applicant

AND:
T T BUILDERS PTY LTD (ACN 120 541 424)
First Respondent

ANTONIO MAURIZIO TESSITORE
Second Respondent

HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent

JUDGE:

WHITE J

DATE:

25 JUNE 2014

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

On 6 June 2014, I announced to the parties…

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: [2014] FCA 672
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Tobin James Linke (the Applicant) sought to have certain fees payable in the Federal Court reduced to the level applicable in the Federal Circuit Court, as well as an order for the referral of certain issues to a referee for inquiry and report. The Applicant also sought to have certain proceedings in the Federal Court transferred from the Federal Circuit Court. The Applicant argued that he was entitled to a reduction of fees as the transfer of proceedings from the Federal Circuit Court to the Federal Court had been involuntary and that the fees payable would cause him financial hardship. The Applicant also sought a referral to a referee on the basis that it may reduce the length of the trial, and thus the costs, and provide an early indication of the likely quantum of his claim. The Court considered the Applicant's submissions and found that the transfer of proceedings was not involuntary, and the Applicant had not shown financial hardship. The Court also found that the referral of certain issues to a referee had potential difficulties that outweighed the advantages. The Court therefore refused the Applicant's applications and ordered that costs be in the cause.

Orders