FEDERAL COURT OF AUSTRALIA
Selig v Wealthsure Pty Ltd [2013] FCA 685
Citation: Selig v Wealthsure Pty Ltd [2013] FCA 685 Appeal from: Wealthsure Pty Ltd v Selig [2013] FCA 628 Parties: RONALD SELIG and JANINA SELIG v WEALTHSURE PTY LTD and DAVID BERTRAM (BY HIS TRUSTEE IN BANKRUPTCY INSOLVENCY TRUSTEE SERVICE OF AUSTRALIA) File number: SAD 163 of 2013 Judge: MANSFIELD J Date of judgment: 11 July 2013 Date of hearing: 5 July 2013 Date of orders: 8 July 2013 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 34 Counsel for the Applicants: P Heywood-Smith QC and D Riggall Solicitor for the Applicants: Radbone & Associates Counsel for the Respondents: T Cox Solicitor for the Respondents: Cosoff Cudmore Knox
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 163 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: RONALD SELIG
First ApplicantJANINA SELIG
Second ApplicantAND: WEALTHSURE PTY LTD
First RespondentDAVID BERTRAM (BY HIS TRUSTEE IN BANKRUPTCY INSOLVENCY TRUSTEE SERVICE OF AUSTRALIA)
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
8 JULY 2013
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application for leave to appeal from the interlocutory Orders 4 and 5 made by the Court on 25 June 2013 in matter SAD 97 of 2013 is refused.
2.The costs of the application to be the costs of the respondent on the appeal in matter SAD 97 of 2013.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 163 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: RONALD SELIG
First ApplicantJANINA SELIG
Second ApplicantAND: WEALTHSURE PTY LTD
First RespondentDAVID BERTRAM (BY HIS TRUSTEE IN BANKRUPTCY INSOLVENCY TRUSTEE SERVICE OF AUSTRALIA)
Second Respondent
JUDGE:
MANSFIELD J
DATE:
11 JULY 2013
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE APPLICATION
The applicants seek leave to appeal from part of the interlocutory judgment of a single judge of the Court given on 24 June 2013 in matter SAD 97 of 2013, and reflected in the Orders numbered 4 and 5 of 25 June 2013. Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The applicants were plaintiffs in an action brought in this Court against the respondents Wealthsure Pty Ltd and David Bertram (the respondents) and other respondents. That claim was heard and determined by judgment given on 18 April 2013: Selig v Wealthsure Pty Ltd [2013] FCA 348. By that judgment, inter alia, the applicants obtained judgment against the respondents for $1,760,512, including interest to the date of judgment, plus costs.
The applicants had also brought proceedings against other defendants to that action, partly successfully, and had also recovered judgment for the same amount against other defendants for that sum together with costs. The applicants had failed in other respects against what were then the ninth…
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- AGLC
- Selig v Wealthsure Pty Ltd [2013] FCA 685
- Case
- [2013] FCA 685
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on whether the primary judge correctly assessed the arguability of the respondents' grounds of appeal and whether there was sufficient doubt about the interlocutory judgment to warrant reconsideration by the Full Court. Additionally, the court had to consider whether a substantial injustice would result if leave to appeal were refused. The applicants argued that the primary judge should have reached a more definitive conclusion about the prospects of the respondents succeeding on their appeal and that there was a substantial injustice in not allowing an appeal.
In assessing the application, the court found that the primary judge correctly applied the principles governing the arguability of the respondents' grounds of appeal. The primary judge's assessment that certain grounds were arguable was not erroneous, and there was no requirement for him to reach a more definitive conclusion about the prospects of the respondents succeeding on their appeal. The court also found that there was no sufficient doubt about the interlocutory judgment to warrant reconsideration by the Full Court and that there would not be a substantial injustice if leave to appeal were refused. Consequently, the application for leave to appeal was refused.
The orders made by the court were that the application for leave to appeal from the interlocutory orders made by the Court on 25 June 2013 was refused, and the costs of the application were to be the costs of the respondent on the appeal in matter SAD 97 of 2013. The entry of these orders was in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application for leave to appeal from the interlocutory Orders 4 and 5 made by the Court on 25 June 2013 in matter SAD 97 of 2013 is refused.
2. The costs of the application to be the costs of the respondent on the appeal in matter SAD 97 of 2013.
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
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The submissions focused upon applying the principles as to whether leave to appeal should be given. The well accepted principles are set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, namely:(1)whether in all the circumstances the interlocutory judgment is attended by sufficient doubt to warrant the decision being reconsidered by the Full Court; and(2)whether a substantial injustice would result if leave were refused, supposing the decision to be wrong.CONSIDERATION It is apparent from the applicants’ submissions on this application that it is not contended that the primary judge misdirected himself as to the principles applicable in deciding whether or not to make an order to stay the execution of the judgment in their favour. The error is said to be in their application. In the primary judgment, the primary judge addressed the principles at [10]-[12]. His Honour then addressed the 21 grounds of appeal of the respondents under the six headings in which they appear, in the Supplementary Notice of Appeal (the then current notice of appeal) of the respondents. A considerable part of the submissions of the applicants on the application focused on the prospects of the respondents avoiding any liability at all if their appeal were to succeed. It is not the case that “liability” as such is in issue on their appeal. What is in issue are various matters relating to the quantum of the loss suffered by the applicants by reason of the conduct of the respondents and others. The grounds of appeal cover claims that there was a failure to prove loss, that the loss as assessed should have been apportioned between the various defendants rather than that there should have been a judgment for the whole of the loss against the respondents, that the amount of contributory negligence on the part of the applicants should have been considerably increased, that the damages assessed at $1,014,680 (plus interest) should have been considerably less, because the only primary or direct loss was the investment by the applicants in the respondent Neovest Ltd (in liquidation) of $450,000 and consequently that the interest assessed was also excessive, and finally under the heading Factual Findings, that a range of particular factual findings should not have been made. The primary judge addressed those various grounds. It is not suggested that the primary judge misunderstood the nature of the grounds of appeal, or failed to assess whether or not they are arguable: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867 and Sevenhill Holdings Pty Ltd v Musovic [1992] FCA 264. His Honour concluded that it was inappropriate to make any precise forecast as to the prospects of success, but that the grounds of appeal concerning causation or proof of loss or damage, proportionate liability, contributory negligence, and the quantum of loss and damage including consequential losses were arguable. I was taken to certain arguments put to the primary judge and urged to reconsider them. I have done so. I do not see any error on the part of the primary judge in assessing the contentions proposed to be put on the appeal as arguable. Nor do I see any error in not taking that matter further. That is a matter for the appeal itself. I have formed no concluded view about the prospects of the respondents succeeding on any of their grounds of appeal. Nor do I think it is arguable before a Full Court if leave to appeal is given that the primary judge must have reached a different conclusion or any more definitive conclusion about “arguability”.