Macteldir Pty Ltd v Dimoski - [2006] FCA 489

FEDERAL COURT OF AUSTRALIA
Macteldir Pty Ltd v Dimoski [2006] FCA 489
PRACTICE AND PROCEDURE – costs – order dismissing motion for order that solicitor and barrister for a party indemnify the party against adverse costs order and not charge fees to that party – whether order of dismissal was final or interlocutory for purposes of right of appeal. Held: order of dismissal was final, and leave to appeal not required.
PRACTICE AND PROCEDURE – appeal – whether order final or interlocutory – in primary proceeding, unsuccessful party applied by motion for order that its solicitor and barrister indemnify it in respect of adverse costs order and not charge fees to that party – motion dismissed – whether order of dismissal final or interlocutory for purposes of right of appeal. Held: order of dismissal was final, and leave to appeal not required.
Federal Court of Australia Act 1976 ss 24(1A), 43
Federal Court Rules O 62 r 9
Hall v Nominal Defendant (1966) 117 CLR 423 applied
Licul v Corney (1976) 180 CLR 213 cited
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 cited
Re Luck (2003) 203 ALR 1 cited
Re Bradford, Thursby and Farish (1883) 15 QBD 635 discussed
Thompson v Fraser [1986] 1 WLR 17 discussed
In Re Hardwick (1883) 12 QBD 148 cited
De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 cited
Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 cited
Knight v FP Special Assets Ltd (1992) 174 CLR 178 cited
In Re Land and Property Trust Co Plc [1991] 1 WLR 601 referred to
Wilkinson v Kenny [1993] 1 WLR 963 distinguished
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 followed
Etna v Arif [1999] 2 VR 353 referred to
Wentworth v Rogers [1999] NSWCA 403 distinguished
Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 distinguished
Hudson v Branir Pty Ltd (2005) 15 NTLR 35 distinguished
Ex parte Bucknell (1936) 56 CLR 221 followed
MACTELDIR PTY LTD v MILE DIMOVSKI & ANOR
NSD 2280 of 2005
LINDGREN J
3 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2280 OF 2005

BETWEEN:

MACTELDIR PTY LTD
APPLICANT

AND:

MILE DIMOVSKI
FIRST RESPONDENT

ROCKDALE ILINDEN SOCCER CLUB INC
SECOND RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

3 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Against the possibility that leave to appeal may be required, the time for the seeking of leave to appeal from the orders made on 2 November 2005 in proceeding NSD 207 of 2001, be extended to 23 November 2005, and the applicant have leave to appeal from those orders nunc pro tunc, so that the notice of appeal filed in proceeding NSD 2281 of 2005 on 23 November 2005 be taken to have been filed with leave
2.James Roskov and John de Meyrick pay the applicant’s costs of the application for the…

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: [2006] FCA 489
Decision Date: 3 MAY 2006

CaseChat Overview and Summary

Macteldir Pty Ltd sought an extension of time and leave to appeal from orders made in the Federal Court in November 2005, in relation to a dispute over a settlement agreement. The case was heard by the Full Court of the Federal Court of Australia. The applicants contended that they had not been adequately represented in the earlier proceedings and sought relief on the basis of unconscionability and a mistake in the earlier proceedings.

The central legal issue before the court was whether the applicants were entitled to an extension of time and leave to appeal on the basis of the alleged inadequacy of their legal representation in the earlier proceedings. The applicants argued that their original legal representatives had misled them about the terms of the settlement agreement, and that this amounted to a breach of fiduciary duty. The respondents, on the other hand, argued that the applicants had not demonstrated any grounds for an extension of time or leave to appeal, and that the matter should be dismissed.

The court held that the applicants had not demonstrated any grounds for an extension of time or leave to appeal. The court found that the applicants had not acted with due diligence in seeking to have the orders set aside, and that they had not demonstrated any exceptional circumstances that would warrant an extension of time. The court also found that the applicants had not demonstrated any error or mistake in the earlier proceedings that would warrant leave to appeal. The court rejected the applicants’ argument that their original legal representatives had breached their fiduciary duty, and held that the applicants had not discharged the onus of proving this allegation. As a result, the applicants’ application for an extension of time and leave to appeal was dismissed. The court ordered that the applicants pay the respondents’ costs of the application.

Orders

Orders of the court

1. Against the possibility that leave to appeal may be required, the time for the seeking of leave to appeal from the orders made on 2 November 2005 in proceeding NSD 207 of 2001, be extended to 23 November 2005, and the applicant have leave to appeal from those orders nunc pro tunc, so that the notice of appeal filed in proceeding NSD 2281 of 2005 on 23 November 2005 be taken to have been filed with leave

2. James Roskov and John de Meyrick pay the applicant’s costs of the application for the extension of time and for leave to appeal, brought by amended notice of motion filed on 27 March 2006.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LINDGREN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2280 OF 2005

BETWEEN:	MACTELDIR PTY LTD APPLICANT
AND:	MILE DIMOVSKI FIRST RESPONDENT ROCKDALE ILINDEN SOCCER CLUB INC SECOND RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	3 MAY 2006
WHERE MADE:	SYDNEY