Application to re-open claim for summary judgment immediately prior to handing down reserved decision - Application dismissed without reference to contents of affidavit sought to be tendered - Test to be applied - Materiality of the proposed evidence - Turns on own facts

Cross-appeal from the grant of unconditional leave to defend incompetent - Section 60(1)(b) of the Supreme Court Act

Legislation:

Supreme Court Act 1935 (WA), s 58, s 60, s 60(1)(b)

Result:

Appeal dismissed
Cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C P Stokes
Respondent: Mr T H Brickhill

Solicitors:

Appellant: Chris Stokes & Associates
Respondent: Brickhills

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

Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1
Australian Electrical Electronics Foundry & Engineering Union (WA Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Baynes & Co v Lloyd & Sons [1895] 2 QB 610
Bunning v Cross (1978) 141 CLR 54
Crowley v Glissan (1905) 2 CLR 402
Dampier Mining Co Ltd v Federal Commissioner of Taxation (1981) 147 CLR 408
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133
Hunt v Knabe (No 2) (1992) 8 WAR 96
Langdale v Danby [1982] 1 WLR 1123
Malzy v Eicholz [1916] 2 KB 308
Maybury v Atlantic Union Oil Co (1953) 89 CLR 507
Radaich v Smith (1959) 101 CLR 209
Smith v New South Wales Bar Association (1992) 176 CLR 256
Smith v Tabain (1987) 10 NSWLR 562
Street v Mountford [1985] AC 809
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

Case(s) also cited:

Betts v Whittingslowe (No 1) [1944] SASR 163
City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146
Dantal Pty Ltd v Independent Franchise Systems Pty Ltd [2001] VSC 139
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
Ince Hall Rolling Mills Co Ltd v Douglas Forge Co (1882) 8 QBD 179
Johansen v City Mutual Life Assurance Society Ltd (1904) 2 CLR 186
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675
National Mutual Royal Bank Limited v D J Ginges, unreported; SCt of NSW (Brownie J); Library No 74868; 15 March 1991
Norton v Taylor (1905) 2 CLR 291
PS Holdings Ltd v Verheggen [2000] WASC 31
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt…

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 Osborne v Landpower Developments Pty Ltd (in liq)

Details

AGLC: Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Case: [2003] WASCA 117
Decision Date: 12 JUNE 2003

CaseChat Overview and Summary

The case of Osborne v Landpower Developments Pty Ltd (in liq) involved an application by the plaintiff to re-open a claim for summary judgment that had been reserved for decision. The application was made immediately prior to the handing down of the reserved decision. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Mr Osborne, sought to tender an affidavit in support of his application to re-open the claim. The defendant, Landpower Developments Pty Ltd, opposed the application on the basis that the affidavit was not material to the decision of the case and, in any event, had not been properly sworn.

The legal issues before the court were whether the application to re-open the claim for summary judgment should be dismissed without reference to the contents of the affidavit sought to be tendered and, if not, whether the affidavit was material to the decision of the case. The court was also required to determine whether the cross-appeal from the grant of unconditional leave to defend was incompetent under section 60(1)(b) of the Supreme Court Act.

The court held that the application to re-open the claim for summary judgment should be dismissed without reference to the contents of the affidavit sought to be tendered. The court held that the test to be applied in determining whether an affidavit is material to the decision of the case turns on the facts of each case. The court held that, in this case, the affidavit was not material to the decision of the case as it did not address any of the issues that were material to the decision of the case. The court also held that the cross-appeal from the grant of unconditional leave to defend was incompetent under section 60(1)(b) of the Supreme Court Act as it was not a final judgment or order of the court.

As a result of the court's decision, the application to re-open the claim for summary judgment was dismissed and the cross-appeal from the grant of unconditional leave to defend was incompetent. No further orders were made.

Orders