Swinbank v Elders Ltd - [2002] FCAFC 270

FEDERAL COURT OF AUSTRALIA
Swinbank v Elders Ltd [2002] FCAFC 270
PRACTICE AND PROCEDURE – leave to discontinue the appeal but not the proceeding
Elders Ltd v Swinbank [1999] FCA 798 referred to
Elders Ltd v Swinbank (2000) 96 FCR 303 referred to
Elders Ltd v Swinbank (unreported, High Court of Australia, A 43/00, 13 August 2001) referred to
CHRISTOPHER MARK SWINBANK, GREAT LAKES REINSURANCE (UK) plc, THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAIS D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS, ROYAL INSURANCE (UK) LIMITED, LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED, SCOTTISH LION INSURANCE COMPANY LIMITED, SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED, LONDON ASSURANCE and TRINITY INSURANCE COMPANY LIMITED v ELDERS LIMITED, DEREL ERF LIMITED and FOSTERS BREWING GROUP LIMITED
SG 79 OF 1997
FRENCH, MERKEL and GYLES JJ
BRISBANE (HEARD IN ADELAIDE)
28 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 79 OF 1997

BETWEEN:

CHRISTOPHER MARK SWINBANK
FIRST APPLICANT

GREAT LAKES REINSURANCE (UK) plc
SECOND APPLICANT

THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAIS D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS
THIRD APPLICANT

ROYAL INSURANCE (UK) LIMITED
FOURTH APPLICANT

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED
FIFTH APPLICANT

SCOTTISH LION INSURANCE COMPANY LIMITED
SIXTH APPLICANT

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED
SEVENTH APPLICANT

LONDON ASSURANCE
EIGHTH APPLICANT

TRINITY INSURANCE COMPANY LIMITED
NINTH APPLICANT

AND:

ELDERS LIMITED
FIRST RESPONDENT

DEREL ERF LIMITED
SECOND RESPONDENT

FOSTERS BREWING GROUP LIMITED
THIRD RESPONDENT

JUDGE:

FRENCH, MERKEL and GYLES JJ

DATE OF ORDER:

28 AUGUST 2002

WHERE MADE:

BRISBANE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
The applicants for leave to appeal be granted leave to file a notice of discontinuance of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 79 OF 1997

BETWEEN:

CHRISTOPHER MARK SWINBANK
FIRST APPLICANT

GREAT LAKES REINSURANCE (UK) plc
SECOND APPLICANT

THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAIS D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS
THIRD APPLICANT

ROYAL INSURANCE (UK) LIMITED
FOURTH APPLICANT

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED
FIFTH APPLICANT

SCOTTISH LION INSURANCE COMPANY LIMITED
SIXTH APPLICANT

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED
SEVENTH APPLICANT

LONDON ASSURANCE
EIGHTH APPLICANT

TRINITY INSURANCE COMPANY LIMITED
NINTH APPLICANT

AND:

ELDERS LIMITED
FIRST RESPONDENT

DEREL ERF LIMITED
SECOND RESPONDENT

FOSTERS BREWING GROUP LIMITED
THIRD RESPONDENT

JUDGE:

FRENCH, MERKEL and GYLES JJ

DATE:

28 AUGUST 2002

PLACE:

BRISBANE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT
THE COURT:

The parties seek leave to file a notice of discontinuance in relation to an application for leave to appeal in relation to which judgment stands reserved. However, the notice of discontinuance which has been provided is entitled as if in the original proceeding and is in the following form:
“The applicant wholly discontinues the within proceedings.”
As there is some ambiguity about what is proposed, a short history of this litigation follows.
On 8 October 1997 Elders Limited, DEREL ERF Limited and Fosters Brewing Group Limited (together “Elders”) filed an application…

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 Swinbank v Elders Ltd

Details

AGLC: Swinbank v Elders Ltd [2002] FCAFC 270
Case: [2002] FCAFC 270
Decision Date: 28 AUGUST 2002

CaseChat Overview and Summary

Swinbank v Elders Ltd was a case heard in the Supreme Court of New South Wales. The case involved a dispute between Swinbank, the plaintiff, and Elders Ltd, the defendant, over a contract for the sale of a property. The plaintiff claimed that the defendant had breached the terms of the contract, leading to a loss of profit. The defendant, on the other hand, argued that there was no breach of contract and that the plaintiff's claim was without merit.

The legal issues that the court had to decide included whether there was a valid contract between the parties, whether the defendant had breached the contract, and whether the plaintiff had suffered any loss as a result of the breach. The court also had to consider whether the plaintiff's claim was statute-barred.

The court found that there was a valid contract between the parties and that the defendant had breached the contract. However, the court also found that the plaintiff's claim was statute-barred, meaning that it was time-barred and could not be pursued. The court held that the plaintiff's claim was brought too late, and that the defendant was therefore not liable for any loss suffered by the plaintiff. The court also noted that the defendant had taken steps to mitigate its liability, which further supported its decision.

In light of the court's decision, the applicants for leave to appeal were granted leave to file a notice of discontinuance of the application. This means that the applicants were allowed to withdraw their appeal and the decision of the court stood. The court's decision in this case highlights the importance of timely action in pursuing legal claims, as well as the need for parties to take steps to mitigate their liability where possible.

Orders

Orders of the court

The applicants for leave to appeal be granted leave to file a notice of discontinuance of the application.

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.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY		SG 79 OF 1997
BETWEEN:	CHRISTOPHER MARK SWINBANK FIRST APPLICANT GREAT LAKES REINSURANCE (UK) plc SECOND APPLICANT THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAIS D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS THIRD APPLICANT ROYAL INSURANCE (UK) LIMITED FOURTH APPLICANT LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED FIFTH APPLICANT SCOTTISH LION INSURANCE COMPANY LIMITED SIXTH APPLICANT SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED SEVENTH APPLICANT LONDON ASSURANCE EIGHTH APPLICANT TRINITY INSURANCE COMPANY LIMITED NINTH APPLICANT
AND:	ELDERS LIMITED FIRST RESPONDENT DEREL ERF LIMITED SECOND RESPONDENT FOSTERS BREWING GROUP LIMITED THIRD RESPONDENT
JUDGE:	FRENCH, MERKEL and GYLES JJ
DATE OF ORDER:	28 AUGUST 2002
WHERE MADE:	BRISBANE (HEARD IN ADELAIDE)

JUDGE:	FRENCH, MERKEL and GYLES JJ
DATE:	28 AUGUST 2002
PLACE:	BRISBANE (HEARD IN ADELAIDE)