Natch v Stennson Pty Ltd - [2022] FCA 641

FEDERAL COURT OF AUSTRALIA
Natch v Stennson Pty Ltd [2022] FCA 641

Appeal from: Application for extension of time and leave to appeal from orders dated 27 October 2021 in proceeding number VID 569 of 2019

File number(s): VID 720 of 2021

Judgment of: O’CALLAGHAN J

Date of judgment: 2 June 2022

Catchwords: PRACTICE AND PROCEDURE – application for extension of time and for leave to appeal – where judge ordered that applicants have leave to discontinue their claims against respondent on the condition that applicants pay respondent’s costs – whether House v The King (1936) 55 CLR 499 error established – application dismissed

Legislation:
Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules 2011 (Cth) rr 26.12(7), 36.05

Building Act 1993 (Vic)

Building Regulations 2018 (Vic)

Cases cited:
Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

House v The King (1936) 55 CLR 499

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1998) 186 CLR 622

WA Property Holdings Pty Ltd v Colliers International (WA) Pty Ltd [2016] FCA 1089

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub‑area: Regulator and Consumer Protection

Number of paragraphs: 31

Date of hearing: 2 June 2022

Counsel for the First Applicant: The First Applicant appeared in person

Counsel for the Second and Third Applicants: Mr RD Seifman

Solicitor for the Second and Third Applicants: Lawyers R Us (Vic)

Counsel for the First Respondent: Mr R Andrew

Solicitor for the First Respondent: KCL Law

Counsel for the Second, Third and Fourth Respondents: The Second, Third and Fourth Respondents did not appear

ORDERS

VID 720 of 2021

BETWEEN:
MOHAN NATCH

First Applicant

ANDAL NATCH

Second Applicant

OWNERS CORPORATION PLAN NO. SP026738V

Third Applicant

AND:
STENNSON PTY LTD

First Respondent

CAMILLO BUILDERS PTY LTD

Second Respondent

BCG (AUST) PTY LTD TRADING AS CHECKPOINT BUILDING SURVEYORS (ACN 394 329 425) (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

O’CALLAGHAN J

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:
1.The applicants’ application for extension of time and leave to appeal be dismissed.
2.The applicants pay the first respondent’s costs, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
O’CALLAGHAN J:

This is an application for an extension of time in which to file an application for leave to appeal under r 36.05 of the Federal Court Rules 2011 (Cth) in respect of costs orders made by Anastassiou J on 27 October 2021 following the applicants’ discontinuance of their proceeding against the respondents in proceeding number VID 569 of 2019.
Leave to appeal is required from the costs order because it was an interlocutory order. See s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal was filed on 2 December…

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 Natch v Stennson Pty Ltd

Details

AGLC: Natch v Stennson Pty Ltd [2018] FCA 905
Case: [2022] FCA 641
Decision Date: 2 June 2022

CaseChat Overview and Summary

Natch filed an application in the Federal Court against Stennson Pty Ltd, seeking an extension of time and leave to appeal. The application followed an order made by the primary judge that allowed the applicants to discontinue their claims against the respondent, contingent on the payment of the respondent’s costs. The applicants argued that the primary judge’s error in law warranted an extension of time and leave to appeal. The court was required to determine whether the primary judge’s decision was indeed erroneous and whether it warranted the relief sought by the applicants.

The court examined whether the primary judge’s decision constituted an error in law, specifically whether it aligned with the principles set out in House v The King. The applicants argued that the primary judge’s decision amounted to an error in law because it did not consider the applicants' ability to pay the costs, which would have been a relevant factor under the cited case. The court assessed the applicants' arguments and considered the precedent provided in House v The King, which emphasised the importance of considering the financial circumstances of the party seeking to discontinue a claim. The court concluded that the primary judge had appropriately exercised their discretion, taking into account the applicants' financial situation and the broader context of the case.

Given the court's findings, it dismissed the applicants’ application for an extension of time and leave to appeal. The court held that the primary judge’s decision did not constitute an error in law and that the applicants had not demonstrated sufficient grounds for the appeal. The applicants were ordered to pay the respondent’s costs, as stipulated in the initial order. The court’s decision was clear and definitive, with no further appeal permitted. The costs order was to be agreed upon or assessed in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicants’ application for extension of time and leave to appeal be dismissed.

2. The applicants pay the first respondent’s costs, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:	Application for extension of time and leave to appeal from orders dated 27 October 2021 in proceeding number VID 569 of 2019
File number(s):	VID 720 of 2021
Judgment of:	O’CALLAGHAN J
Date of judgment:	2 June 2022
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time and for leave to appeal – where judge ordered that applicants have leave to discontinue their claims against respondent on the condition that applicants pay respondent’s costs – whether House v The King (1936) 55 CLR 499 error established – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) rr 26.12(7), 36.05 Building Act 1993 (Vic) Building Regulations 2018 (Vic)
Cases cited:	Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 House v The King (1936) 55 CLR 499 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1998) 186 CLR 622 WA Property Holdings Pty Ltd v Colliers International (WA) Pty Ltd [2016] FCA 1089
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub‑area:	Regulator and Consumer Protection
Number of paragraphs:	31
Date of hearing:	2 June 2022
Counsel for the First Applicant:	The First Applicant appeared in person
Counsel for the Second and Third Applicants:	Mr RD Seifman
Solicitor for the Second and Third Applicants:	Lawyers R Us (Vic)
Counsel for the First Respondent:	Mr R Andrew
Solicitor for the First Respondent:	KCL Law
Counsel for the Second, Third and Fourth Respondents:	The Second, Third and Fourth Respondents did not appear

ORDER MADE BY:	O’CALLAGHAN J
DATE OF ORDER:	2 JUNE 2022