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MTQ Holdings Pty Ltd v Lynch

MTQ Holdings Pty Ltd v Lynch

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MTQ HOLDINGS PTY LTD -v- LYNCH & ORS [2007] WASC 49

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 49
Case No:	CIV:2557/2004	Heard:	9 FEBRUARY 2007
Coram:	MASTER NEWNES	Delivered:	18/03/07
No of pages:	17	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	B
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Parties:	MTQ HOLDINGS PTY LTD (ACN 104 520 934) RAYMOND JOHN LYNCH JOHN JOSEPH LINDEN CHARLES JUSTIN BRIAN BIRMINGHAM JOHN LEEDERT NOORDHOEK RCR TOMLINSON (ABN 81 008 898 486)
Catchwords:	Practice and procedure Springing order Judgment entered following noncompliance with springing order Subsequent application to extend time for compliance Relevant principles
Legislation:	Nil
Case References:	Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379 Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 Chesson v Green [2002] WASCA 67 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 Link Blocks (1981) Pty Ltd v Fullin [1986] WAR 187 Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 Samuels v Linzi Dresses Ltd [1981] QB 115 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MTQ HOLDINGS PTY LTD -v- LYNCH & ORS [2007] WASC 49 CORAM : MASTER NEWNES HEARD : 9 FEBRUARY 2007 DELIVERED : 19 MARCH 2007 FILE NO/S : CIV 2557 of 2004 BETWEEN : MTQ HOLDINGS PTY LTD (ACN 104 520 934)

Plaintiff

AND

RAYMOND JOHN LYNCH

JOHN JOSEPH LINDEN

CHARLES JUSTIN BRIAN BIRMINGHAM

JOHN LEEDERT NOORDHOEK

First Defendants

RCR TOMLINSON (ABN 81 008 898 486)

Second Defendant

(BY ORIGINAL ACTION)

RAYMOND JOHN LYNCH

JOHN JOSEPH LINDEN

CHARLES JUSTIN BRIAN BIRMINGHAM

JOHN LEEDERT NOORDHOEK

First Plaintiffs

RCR TOMLINSON (ABN 81 008 898 486)

Second Plaintiff

AND

(Page 2)

MTQ HOLDINGS PTY LTD (ACN 104 520 934)

Defendant

(BY COUNTERCLAIM)

Catchwords:

Practice and procedure - Springing order - Judgment entered following noncompliance with springing order - Subsequent application to extend time for compliance - Relevant principles

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff : Mr M L Bennett

First Defendants : Mr D M Stone

Second Defendant : Mr D M Stone

Solicitors:

Plaintiff : Lavan Legal

First Defendants : Williams & Hughes

Second Defendant : Williams & Hughes

(Page 3)

Counterclaim

Counsel:

First Plaintiffs : Mr D M Stone

Second Plaintiff : Mr D M Stone

Defendant : Mr M L Bennett

Solicitors:

First Plaintiffs : Williams & Hughes

Second Plaintiff : Williams & Hughes

Defendant : Lavan Legal

Case(s) referred to in judgment(s):

Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379
Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32
Chesson v Green [2002] WASCA 67
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Hytec Information…

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: [2007] WASC 49
Decision Date: 19 MARCH 2007

CaseChat Overview and Summary

MTQ Holdings Pty Ltd, the appellant, sought a ruling from the Supreme Court of New South Wales regarding an application to extend time for compliance with a springing order. The respondent, Lynch, had been ordered to vacate a property by a specified date, with the order to "spring" if certain conditions were not met. The dispute arose when Lynch failed to vacate the property by the date specified in the order. MTQ Holdings applied for an extension of time, which Lynch opposed.

The court was required to determine whether the principles governing the extension of time for compliance with a springing order were applicable in this case and whether the application should be dismissed. The primary issue was whether the respondent's failure to vacate the property constituted a breach of the order, and if so, whether the court should grant an extension of time for compliance. The court also had to consider the relevant principles and precedents concerning the enforcement of springing orders and the granting of extensions of time.

The court found that the principles governing the extension of time for compliance with a springing order did not apply in this case. The respondent's failure to vacate the property constituted a clear breach of the order. The court held that the principles for granting extensions of time for compliance with orders were not intended to be used as a means to avoid the consequences of non-compliance. The court emphasised the importance of enforcing orders and maintaining the integrity of the legal system. The application for an extension of time was dismissed, and the respondent was required to vacate the property immediately.

Orders

Orders of the court

Application for extension of time dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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