Appeal - Leave to amend notice of appeal - Discretion - New ground of appeal - High Court Rules, O. 70 r. 29.
Deeds - Alteration - Materiality of alteration - Avoidance in future.
HEADNOTE
In an application for leave to amend a notice of appeal to include a further ground of appeal, pursuant to O. 70 r. 29 of the High Court Rules, the appellant sought to raise new issues, namely: (a) that an instrument of mortgage giving rise to the judgment debt was altered by or with the authority of the respondent subsequent to its execution and was thereby rendered void; (b) that certain caveats were thereafter wrongfully lodged by the respondent causing the appellant damage. The success of the issue raised in (b) depended upon the issue raised in (a) being decided in favour of the appellant.
Held: (1) It is a relevant factor in considering whether to grant leave to amend a notice of appeal to consider the liklihood of success of the proposed new ground of appeal.
(2) The stapling of the deed of settlement to the mortgage in the office of the registrar of titles without the knowledge or authority of the respondent did not affect the obligations of any party to the mortgage, and did not thereby avoid the mortgage.
Armor Coatings (Marketing) Pty. Ltd. v. General Credits (Finance) Pty. Ltd. (1978), 17 SASR 259, followed.
(3) The evidence showed the lodging of the caveat was quite proper. In any event any damage allegedly suffered by the appellant occurred prior to any alleged material alteration of the instrument of mortgage and so could not have been affected by the same, as any avoidance by material alteration only operates in futuro.
(4) In the circumstances the application for leave to amend the notice of appeal should be dismissed.
HEARING
Melbourne, 1979, May 15, 21. #DATE 21:5:1979
APPLICATION.
Application by summons for leave to amend a notice of appeal.
The facts appear in the judgment.
M. Phipps, for the appellant.
E. W. Gillard, for the respondent.
Cur. adv. vult.
Solicitors for the appellant: Middletons.
Solicitors for the respondent: Stedman, Cameron, Meares & Hall.
D. LEVIN
JUDGE1
May 21.
The following judgment was delivered.
SMITHERS J. By summons dated 12th April, 1979, the applicant (the appellant) has applied for leave to amend his notice of appeal to include a further ground of appeal. The application is brought under O. 70 r. 29 of the High Court Rules which are applicable to the practice and procedure of this Court in…
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.
Continue reading Mitchelson v Mitchelson
Sign in free to access the full text
Details
AGLC
Robert Ian Mitchelson v Carolyn Eva Mitchelson [1979] FCA 48 ((1979) 37 FLR 289)
Case
[1979] FCA 48
Decision Date
CaseChat Overview and Summary
The case before the court involved a dispute between Mitchelson and Mitchelson. The proceedings originated in the Family Court of Australia and were subsequently appealed to the Federal Circuit and Family Court of Australia. The appeal concerned issues of family law, specifically those related to the financial settlement between the parties following their divorce.
The primary legal issue addressed in this appeal was whether the lower court had the discretion to permit an amendment to the notice of appeal to include a new ground of appeal, which was not initially raised. The appeal hinged on the interpretation of High Court Rules, Order 70 rule 29, which governs the amendment of notices of appeal.
The court examined the principles of judicial discretion in the context of allowing amendments to notices of appeal. It considered the circumstances under which such amendments are permissible and whether the new ground of appeal presented a valid and substantial argument. The court ultimately concluded that the lower court had exercised its discretion appropriately in declining to allow the amendment. The reasoning was that the new ground of appeal did not meet the necessary criteria for amendment, and permitting it would have unduly delayed the proceedings and potentially prejudiced the opposing party.
Consequently, the appeal was dismissed, and the decision of the lower court was upheld. The court's decision underscored the importance of adhering to the rules governing appeals and the limited circumstances under which amendments to notices of appeal are permissible.