Skiwing Pty Limited v Trust Company of Australia Ltd

[2011] FCAFC 147

FEDERAL COURT OF AUSTRALIA

Skiwing Pty Limited v Trust Company of Australia Ltd [2011] FCAFC 147

Citation:		Skiwing Pty Limited v Trust Company of Australia Ltd [2011] FCAFC 147
Appeal from:		Skiwing Pty Limited v Trust Company of Australia Ltd [2011] FCA 438
Parties:		SKIWING PTY LIMITED TRADING AS CAFE TIFFANY'S v TRUST COMPANY OF AUSTRALIA LTD (STOCKLAND PROPERTY MANAGEMENT LTD)
File number(s):		NSD 422 of 2008
Judges:		JACOBSON, SIOPIS AND NICHOLAS JJ
Date of judgment:		31 October 2011
Catchwords:		PRACTICE AND PROCEDURE – interlocutory application to adjourn hearing of appeal – interlocutory application dismissed – failure by appellant to comply with Court’s directions to file submissions – no identification of error in primary judgment – appeal dismissed
Date of hearing:	31 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Appellant:	Mr DR Marshall
Solicitor for the Appellant:	KTG Lawyers
Counsel for the Respondent:	Mr R Darke SC with Mr A Zahra
Solicitor for the Respondent:	Lee & Lyons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 422 of 2008

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SKIWING PTY LIMITED TRADING AS CAFE TIFFANY'S Appellant
AND:	TRUST COMPANY OF AUSTRALIA LTD (STOCKLAND PROPERTY MANAGEMENT LTD) Respondent

JUDGES:	JACOBSON, SIOPIS AND NICHOLAS JJ
DATE OF ORDER:	31 OCTOBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appellant’s Interlocutory Application filed 26 October 2011 be dismissed.

2.The appeal be dismissed.

3.The Appellant pay the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 422 of 2008

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SKIWING PTY LIMITED TRADING AS CAFE TIFFANY'S Appellant
AND:	TRUST COMPANY OF AUSTRALIA LTD (STOCKLAND PROPERTY MANAGEMENT LTD) Respondent

JUDGES:	JACOBSON, SIOPIS AND NICHOLAS JJ
DATE:	31 OCTOBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal was called on for hearing this morning.  Mr Marshall moved on an interlocutory application seeking vacation of the hearing and certain related orders or directions.  The interlocutory application was supported by an affidavit of Mr Zoran Stojanoski sworn 26 October 2011. Mr Stojanoski is the managing director of the appellant, Skiwing Pty Limited. 

2. The principal ground relied upon for an adjournment, concerned the Appellant’s legal representation on the appeal.  Mr Stojanoski’s evidence was that he had a difference of opinion with senior counsel who had been briefed on the appeal.  Senior counsel had provided two opinions in relation to the appeal.  The opinions provided by the barrister caused Mr Stojanoski to seek to change his legal representation.

3. The barrister briefed on the appeal ceased work on the appeal the day before the Appellant’s written submissions were due to be filed.  The then solicitors for the Appellant also ceased work on 18 October 2011. 

4. On 24 October 2011 the appellant retained Mr Kristjan Geering, solicitor, who briefed Mr Marshall of counsel and a conference was held on that day.  Following the conference, no attempt was made by the Appellant to comply with the court’s direction to file written submissions.  During the course of the adjournment application, Mr Marshall informed us that the Appellant wished to amend its grounds of appeal. However he was not in a position to hand up any proposed amended notice of appeal. Nor was he in a position to inform the Court, even in the most general terms, of any arguable ground of appeal.

5. The only issue identified by Mr Marshall, was the question of whether the Appellant’s claims were statute barred.  However, the Appellant’s claims were rejected comprehensively by the primary judge on a number of grounds; in particular, because of factual findings adverse to the Appellant.  Those findings included key factual findings as to each of the elements of the cause of action.  A number of the findings were based upon his Honour’s assessment of the evidence of witnesses, including in particular his assessment of the evidence of Mr Stojanoski.  Accordingly, the question of whether the claims were statute barred does not provide a reason for setting aside the orders made by the primary judge.

6. In summary, the Court is confronted with the situation where there are no submissions provided by the appellant, and where the appellant did not seek to advance any of the other grounds of appeal set out in the notice of appeal. Moreover, in preparation for the appeal we considered and reviewed the primary judge’s reasons for judgment.  It does not appear to us, based upon a reading of his Honour’s judgment and, in particular, his Honour’s factual findings, that there is any reason to believe that the Appellant has any prospects of setting aside the primary judge’s orders. 

7. In those circumstances it has not been demonstrated that any injustice would be suffered by the Appellant by an order dismissing the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, Siopis and Nicholas.

Associate:

Dated:        31 October 2011