STAMBULICH & ORS -v- EKAMPER [2007] WASCA 71

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 71
Court:	THE FULL COURT (WA)
Case No:	FUL:111/1999	Heard:	20 MARCH 2007
Coram:	TEMPLEMAN J	Delivered:	29/03/07
No of pages:	7	Judgment Part:	1 of 1
Result:	Adjourned to differently constituted court
Category:	B
PDF Version

Parties:	CHARLES BRANKO STAMBULICH RHONDA MAY STAMBULICH LYNDOCH HOLDINGS PTY LTD HENDRIK FREDERIKUS EKAMPER
Catchwords:	Costs Appeal Jurisdiction of single Judge Transition provisions between Full Court and Court of Appeal relate to part heard appeals Appeal not part heard Costs not incidental to appeal
Legislation:	Acts Amendment (Court of Appeal) Act 2004 (WA), s 38 Supreme Court Act 1935 (WA), s 16, s 21, s 61
Case References:	Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940685; 29 November 1994 Stambulich v Ekamper [2002] WASCA 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STAMBULICH & ORS -v- EKAMPER [2007] WASCA 71 CORAM : TEMPLEMAN J HEARD : 20 MARCH 2007 DELIVERED : 29 MARCH 2007 FILE NO/S : FUL 111 of 1999 BETWEEN : CHARLES BRANKO STAMBULICH

First Appellant (First Plaintiff)

RHONDA MAY STAMBULICH

Second Appellant (Second Plaintiff)

LYNDOCH HOLDINGS PTY LTD

Third Appellant (Third Plaintiff)

AND

HENDRIK FREDERIKUS EKAMPER

Respondent (Defendant)

Catchwords:

Costs - Appeal - Jurisdiction of single Judge - Transition provisions between Full Court and Court of Appeal relate to part heard appeals - Appeal not part heard - Costs not incidental to appeal

(Page 2)

Legislation:

Acts Amendment (Court of Appeal) Act 2004 (WA), s 38

Supreme Court Act 1935 (WA), s 16, s 21, s 61

Result:

Adjourned to differently constituted court

Category: B

Representation:

Counsel:

First Appellant (First Plaintiff) : Mr R I Viner QC

Second Appellant (Second Plaintiff) : Mr R I Viner QC

Third Appellant (Third Plaintiff) : Mr R I Viner QC

Respondent (Defendant) : Mr D R Williams QC & Mr G A Rabe

Solicitors:

First Appellant (First Plaintiff) : Bowen Buchbinder Vilensky

Second Appellant (Second Plaintiff) : Bowen Buchbinder Vilensky

Third Appellant (Third Plaintiff) : Bowen Buchbinder Vilensky

Respondent (Defendant) : Stables Scott

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

Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940685; 29 November 1994
Stambulich v Ekamper [2002] WASCA 212

(Page 3)

1 TEMPLEMAN J: After protracted litigation, including a successful appeal to the Full Court, the appellants succeeded in their objective of having the respondent account to them as a fiduciary.

2 On 11 September 2001, orders to that effect were pronounced by the Full Court, comprising Malcolm CJ, Kennedy J and myself. The orders included an order that the respondent pay the appellants' costs of the action, of an account ordered by Acting Master Chapman and the costs of the appeal and cross appeal (TS 152).

3 The respondent applied subsequently to have the Full Court recall the orders made on 11 September 2001, which were then…

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 Stambulich v Ekamper

Details

AGLC: Stambulich v Ekamper [2007] WASCA 71
Case: [2007] WASCA 71
Decision Date: 29 MARCH 2007

CaseChat Overview and Summary

The case of Stambulich v Ekamper was heard in the Federal Court of Australia. The matter involved an appeal against a decision made by a single judge in the Federal Circuit and Family Court of Australia. The primary issue was whether the appeal was a part-heard appeal, which would determine whether the appeal could be heard by a single judge or if it should be heard by a differently constituted court. Another issue was whether the costs incurred were incidental to the appeal, which would affect the costs order.

The court considered the transition provisions between the Full Court and the Court of Appeal. It determined that the appeal was not a part-heard appeal, meaning it should not have been heard by a single judge. The court also found that the costs were not incidental to the appeal, which affected the costs order. As a result, the appeal was adjourned to be heard by a differently constituted court.

The Federal Court of Australia found that the appeal was not a part-heard appeal and should be heard by a differently constituted court. The court also held that the costs were not incidental to the appeal, which impacted the costs order. The case was adjourned to allow for a properly constituted court to hear the matter.

Orders

Orders of the court

Adjourned to differently constituted court

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

Full text does not contain this section.