Muller v Combis

[2005] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Muller v Combis [2005] FCAFC 150

JEFFREY ALAN MULLER AND LYNETTE ANNE MULLER V NICK COMBIS

NO QUD 10 OF 2005

SPENDER, KIEFEL and DOWSETT JJ
4 AUGUST 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 010 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JEFFREY ALAN MULLER AND LYNETTE ANNE MULLER APPELLANTS
AND:	NICK COMBIS RESPONDENT
JUDGES:	SPENDER, KIEFEL and DOWSETT JJ
DATE OF ORDER:	4 AUGUST 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent’s costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 010 OF 2005

BETWEEN:	JEFFREY ALAN MULLER AND LYNETTE ANNE MULLER APPELLANTS
AND:	NICK COMBIS RESPONDENT

JUDGES:	SPENDER, KIEFEL and DOWSETT JJ
DATE:	4 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. These are the reasons of the Court for dismissing the appeal by Jeffrey Alan Muller and Lynette Anne Muller against the orders of Cooper J on 21 December 2004, whereby his Honour, in each case, dismissed the applications for annulment and ordered the applicants pay the costs of the respondent, including reserved costs, to be taxed if not agreed.

2. The appeal to the Full Court of the Federal Court has been attended by serious administrative difficulties.  Amongst other things, when the appeal was called on today the appeal books, in accordance with the draft settled index for the appeal books, were not produced, or have not been produced to the Court.

3. The appellants, for their part, produced a document which essentially consisted of a document headed Amended Notice of Appeal containing amended grounds of appeal, and a copy of an affidavit which purports to be by both appellants but which in fact was signed only by the male appellant.  This document was in evidence before Cooper J. 

4. That was only part of the material before the primary judge.  It is nonetheless relevant to the disposition of this appeal, because it is the material on which the appellants wish to rely in support of their claims that his Honour erred in the conclusions that he reached. 

5. In respect of the amended grounds of appeal, it appears that the appellants were advised by a Registrar to file and serve a document by a certain date, and that was attended to by their then solicitors. 

6. There is nothing to suggest that there was leave granted by the Court to rely on those amended grounds on this appeal, but in the events that have happened, the respondent does not object to our granting the appellants leave to rely on the grounds contained in their amended notice of appeal.  Those are the grounds which are addressed in the written submissions on behalf of the respondent, who is the trustee of the estates of each of the appellants. 

7. The…