Robinswood Pty Ltd v Horsman, B.S.

[1990] FCA 329

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329 9 5 , . i ;

JUDGMENT NO. ........ ........ / .--.

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IN THE FEDERAL COURT OF AUSTRALIA	)	t . *
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WESTERN AUSTRALIA DISTRICT REGISTRY)	-W. NO. 6.110 of 1989	! <

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GENEF?ATJ DIVISION	1	-	1,.	l
BETWEEN:

ROBINSWOOD PTY LIMITED .- : i.

-	Applicant
and

BARRY STANLEY HORSMAN AND OTHERS

Respondents

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COURT :	NORTHROP, WILCOX & HILL JJ.
m:	30 APRIL 1990
PLACE :	PERTH

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MINUTES OF ORDER

The court Orders that the application for leave to appeal be

refused with costs. -

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REGISTRY

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

-2 JUL1990

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

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IN THE FEDERAL COURT OF AUSTRALIA ) -

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WESTERN AUSTRALIA DISTRICT REGISTRY)	W. No. G.l10 of 1989
GENERAL DIVISION
BETWEEN:

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ROBINSWOOD PTY. LIMITED

~ ~ ~ l i c a n t

and

BARRY STANLEY HORSMAN AND OTHERS

Respondents

COURT:	NORTHROP, WILCOX & HILL JJ.
m:	30 APRIL 1990
PLACE :	PERTH  - .

REASONS FOR JUDGMENT

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NORTHROP J.

I ask my brother Wilcox to give the views of the

Court.

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I agree with-the reasons given. -I merely make one
other comment. It seems to me, that the issues raised by the

proposed form of the relief sought, which could be brought in

- another application in this court, are similar to those- which
would be raised in the County Court proceedings and despite

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what has been said, I see no basis why the County Court could

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not decide those issues also in the same way as the Supreme

-court did in-the-case	of Burrowell Oil and Mininq No ~iabilit~
v. ISM Mineral Develo~ment	Ptv Limited (1981) 38 A.L.R. 288.

I certify that this and the - L

preceding-pages are a true copy of

the Reasons for Judgment herein of	the Honourable M r Justice Northrop.
Associate:
Date:  - 30 April 1990

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I I IN THE FEDERAL COURT OF AUSTRALIA )

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WESTERN AUSTRALIA DISTRICT REGISTRY) W. NO. 6.110 of 1989

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GENERAL DIVISION 1

l - . .

BETWEEN:

ROBINSWOOD PTY. LIMITED

Applicant

and

BARRY STANLEY HORSMAN AND OTHERS

Respondents -

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COURT :	NORTHROP, WILCOX & HILL JJ.
DATE:	30 APRIL 1990

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PLACE :  PERTH

REASONS FOR JUDGMENT

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WILCOX J.

I am of the opinion that the application should be refused. There are two objections, each of them, in my -

opinion, fatal to the application. The first of them is the time which was allowed to lapse before the application was made. This has not been explained. Indeed, looking -at the affidavit sworn in support of the application, one can only come to the conclusion that there was never any consideration given to the filing of an appeal within the requisite time. It was some three months after the judgment was delivered before the application for leave to appeal was filed.

The second aspect of the matter is that, in my [

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opinion, there is no possibility of success in the appeal.	!
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The Judge, -at first instance, French J., -described the
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application with which he was dealing as misconceived.	It	, .
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seems to me that that observation was plainly correct; and :

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indeed, =this has been conceded on behalf of the- applicant	I. 5
- today. The applicant has indicated that the form of the relief which is sought may require amendment in the light of	i
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the comments made by the primary Judge and has foreshadowed	-:
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the type of declaration which his client would -seek. That

-. declaration is one that the deed is not bindi-ng upon h-. . I . ,

because of non-compliance with section 218(1)(A)(i) and	b.!
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section 223(2) of the Bankru~tcv Act. '.

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I would not wish to make any comment as to whether	1' ,
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such an application ought to - succeed, if .it was made in a

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separate proceeding. I simply say that, if the present .

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applicant desires to make such an application, I do not see	,
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that he is p?ecluded from doing so by -anything that has	-

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occurred in connection with the cu;rent application. His -	I
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Honour was not dealing with such an application and did not	r : '

purport to resolve the merits- of such an application in any - ! -

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way. I think it would be wrong -for this Court to give leave to appeal in a case where the applicant concedes that he is	i -
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not entitled to the relief which he previously sought, simply	!
to enable him to mount a different appl-ication before a Full Court. Apart from anything else, that course would create some difficulty if, as is quite possible, there is an issue
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between the parties as to the factual basis underlying the

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amended claim. Accordingly, in my view, the appropriate
course is for the application to be refused, with costs.

I certify that this and the preceding pages are a true copy of the Reasons for Judgment herein of the Honourable M r Justice Wilcox.

Associate:

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Date:  30 April 1990

IN THE FEDERAL COURT OF AUSTRALIA )

i

WESTERN AUSTRALIA DISTRICT REGISTRY)	W. No. G.l10 of 1989
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GENERAL DIVISION	-	1
BETWEEN:

ROBINSWOOD PTY. LIMITED

~pplican;

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and

BARRY STANLEY HORSMAN AND OTHERS

Respondents

COURT :	NORTHROP, WILCOX & HILL J.J.	- -
DATE :	30 APRIL 1990
PLACE :	PERTH

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REASONS FOR JUDGMENT

HILL J.

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Yes, I too am of the opinion that the application should be dismissed with costs. I agree with the reasons given by -

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Wilcox J.	. .
I certify that this and the	-
preceding pages are a true copy of the Reasons for Judgment herein of The Honourable Mr Justice Hill.
Associate:	B A -
Date:	30 April 1990

ATTACHMENT

of Action:  ~obinswood Ptv Limitea - .

v. Barrv Stanlev Horsman

and Others

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File Number:  - W; No. 6.110 of 1989 . . -

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Date of Hearing:	30 April 1990
Judgment Delivered:	30 April 1990

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Counsel for Appellants:  MI B. Wheatley -

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~olicitors for Appellants : ors sir & Corser

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Counsel for Respondents:  MI R. Cullen

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! Solicitors .for Respondents: Dwyer & Durack

Signed ........ ........ . -

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I	Dated . 30 April 1990	-
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