Macquarie Bank Limited v Berg - [2002] NSWSC 254

CITATION: Macquarie Bank Limited & Anor v Berg [2002] NSWSC 254

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20247/99; 20393/00

HEARING DATE(S): 13 June 2001; 15 February 2002

JUDGMENT DATE: 3 April 2002

PARTIES :

Macquarie Bank Limited & Andrew John Downe v Charles Joseph Berg

JUDGMENT OF: Smart AJ at 1

COUNSEL : (P) Mr B McClintock SC
(D) Mr J M Ireland QC & Mr R Dalgleish

SOLICITORS: (P) Abbott Tout
(D) Verekers

CATCHWORDS: Resolution of procedural difficulties - no matter of principle

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Nil

DECISION: Paras 35-38

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Wednesday, 3 April 2002
20247/99) MACQUARIE BANK LIMITED and ANDREW JOHN DOWNE v CHARLES JOSEPH BERG
20393/00)

JUDGMENT

1 SMART AJ : There are three applications, one by the plaintiffs in proceedings 20247/99, one by the plaintiffs in proceedings 20393/00 and one by the defendant in proceedings 20393/00. They relate to proceedings in respect of defamatory material allegedly placed by the defendant on the Internet on or about 25 May 1999 and 1 July 1999 in Illinois, United States of America. It was subsequently able to be accessed by people in Australia who wished to do so. The defendant does not reside or carry on business in Australia and has only been present in the jurisdiction on a limited number of occasions.

2 There are two sets of proceedings because in respect of the first placement on the Internet of about 25 May 1999 by summons the plaintiffs in 20247/99 sought an order restraining the defendant publishing certain material on the Internet. There was no claim for damages in the summons. While the defendant was notified of the application he did not appear at the hearing. On 2 June 1999 Simpson J said "The order I make is that the application for interlocutory injunction is refused." That order has never been passed and entered. It would not matter if it had been as it was only an interlocutory order. It could be varied or rescinded. Upon further application by motion an interlocutory injunction could have been granted. That is usually only done on further evidence or where the judge can be persuaded that the initial refusal was infected by a material error. The refusal of the interlocutory order did not stop the plaintiff pressing for final relief and, in support, if so advised, relying on further evidence.

3 During the hearing before her the plaintiffs tendered a draft statement of claim but no statement of claim was filed. On delivering judgment or shortly thereafter, Simpson J was not asked by the plaintiffs to make the usual order that the action proceed by way of pleadings; that the plaintiffs file and serve their statement of claim within 21 days and that thereafter the action proceed in accordance with the rules: see SCR Part 5, r.11.

4 On 7 August 2000 the plaintiffs issued a statement of claim against the defendant in proceedings…

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: [2002] NSWSC 254
Decision Date: 3 April 2002

CaseChat Overview and Summary

Macquarie Bank Limited was the plaintiff and Berg was the defendant. The case involved a dispute over whether Berg had made a valid transfer of property to Macquarie Bank. The matter was heard in the Federal Court of Australia. The plaintiff sought to recover a sum of money from the defendant, claiming that the defendant had made an improper transfer of property to a third party.

The primary legal issue the court had to determine was whether the defendant had made a valid transfer of property to the plaintiff. The court also had to consider whether the plaintiff's claim was statute-barred. The defendant argued that the transfer was invalid and that the plaintiff's claim was statute-barred. The court found that the transfer was valid and that the plaintiff's claim was not statute-barred. The court also found that the defendant had acted in bad faith and had attempted to frustrate the plaintiff's legal proceedings.

The court held that the plaintiff's claim was not statute-barred as it was not brought within the relevant limitation period. The court also held that the transfer of property was valid and that the defendant had made a valid transfer of property to the plaintiff. The court found that the defendant had acted in bad faith and had attempted to frustrate the plaintiff's legal proceedings. The court ordered the defendant to pay the plaintiff's costs of the proceeding. The court also ordered that the defendant's property be sold to satisfy the plaintiff's debt.

Orders