Milltec Australia Pty Ltd v Burnes

[2006] NSWCA 13

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Milltec Australia Pty Ltd v Burnes & Anor [2006]  NSWCA 13

FILE NUMBER(S):
40637 of 2004; CA 40301 of 2005

HEARING DATE(S):            23 September 2005

DECISION DATE:     13/02/2006

PARTIES:
Milltec Australia Pty Ltd (Appellant/Claimant)
Wayne Burnes (First Respondent/First Opponent)
Milling Process Services Pty Ltd (Second Respondent/Second Opponent)

JUDGMENT OF:      Handley JA Hodgson JA Campbell AJA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):        SC 4309 of 2001

LOWER COURT JUDICIAL OFFICER:     Cripps AJ

COUNSEL:
N Cotman SC/K Odgers (Appellant/Claimant)
D Smallbone (Respondents/Opponents)

SOLICITORS:
McCabe Terrill (Appellant/Claimant)
Doherty Partners (Respondents/Opponents)

CATCHWORDS:
APPEAL – competency – amount involved – claim and value must be capable of reasonable support
CONVERSION – claim to bare declaration and inquiry without proof of cause of action misconceived
JUDGMENTS AND ORDERS – claim to declaration and inquiry as to damages – cause of action must be established at trial – inquiry consequential
D

LEGISLATION CITED:
Supreme Court Act 1970

DECISION:
(1) Appeal as of right dismissed as incompetent.
(2) Leave to appeal granted limited to grounds 6 and 7 of the notice of appeal of 2 November 2004.
(3) Summons for leave to appeal otherwise dismissed.
(4) Appeal allowed in part.
(5) Declare that the first respondent is accountable to the appellant for the profit of $21,500 made by him from the sale of a second hand Buhler separator and a second hand ribbon mixer to OBP Pty Ltd invoiced to that company on 25 May 2000.
(6) Order that the first respondent pay $21,500 to the appellant together with interest at Court rates from 1 June 2000.
(7) Appeal otherwise dismissed and orders 1-7 and 9-11 made by Cripps AJ on 6 July 2004 confirmed.
(8) The appellant is to pay one-half of the respondents’ costs of the appeal, the objection to competency and the summons for leave to appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40637/04
CA 40301/05

HANDLEY JA
HODGSON JA
M W CAMPBELL AJA

13 FEBRUARY 2006

MILLTEC AUSTRALIA PTY LTD v WAYNE BURNES & ANOR

CATCHWORDS

APPEAL – competency – amount involved – claim and value must be capable of reasonable support

CONVERSION – claim to bare declaration and inquiry without proof of cause of action misconceived

JUDGMENTS AND ORDERS – claim to declaration and inquiry as to damages – cause of action must be established at trial – inquiry consequential

FACTS

The claimant, as defendant below, had cross-claimed against the plaintiff and a company through which he traded for equitable compensation, a declaration of conversion in respect of plant and equipment and an inquiry as to damages, and an account of profits.  The trial Judge dismissed the cross-claim.  The cross-claimant appealed as of right but the respondent objected to the competency of the appeal on the ground that it did not involve a claim to $100,000 or more (Supreme Court Act s 101(2)(r)).  The claimant applied for leave to appeal in the event…