The Colonial Hardware Co Pty Ltd v Bank of Melbourne Ltd

[1995] FCA 925

IN THE FEDERAL COURT OF AUSTRALIA )
  )
QUEENSLAND DISTRICT REGISTRY     )    No.  QG 136 of 1995
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:THE COLONIAL HARDWARE COMPANY PTY LTD

FRANK SEED and JANE SEED

Applicants

AND:BANK OF MELBOURNE LIMITED

Respondent

COURT:  Lockhart, Spender and Ryan JJ.
DATE:   6 November 1995
PLACE:  Brisbane

MINUTE OF ORDER
THE COURT ORDERS THAT:

1. Leave to appeal from the judgment of Drummond J. given on 18 August 1995 be refused.

1. The applicants pay the costs of the respondent of the motion for leave to appeal.  The Court declines to make any special order for immediate taxation and payment of those costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
QUEENSLAND DISTRICT REGISTRY     )    No.  QG 136 of 1995
  )
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:THE COLONIAL HARDWARE COMPANY PTY LTD

FRANK SEED and JANE SEED

Applicants

AND:BANK OF MELBOURNE LIMITED

Respondent

COURT:  Lockhart, Spender and Ryan JJ.
DATE:   6 November 1995
PLACE:  Brisbane

REASONS FOR JUDGMENT
THE COURT
     This is a motion for leave to appeal from the judgment of a judge of the Court given on 18 August 1995.  It is agreed between the parties (correctly in our opinion) that the judgment is interlocutory and therefore leave to appeal is required. 

In the opinion of the Court, the judgment of the learned primary Judge is not attended by sufficient doubt to warrant it being reconsidered by the Full Court.  Leave to appeal should be refused.

However, the Court notes that his Honour granted leave to the applicants to re-plead certain of the allegations which were the subjects of paragraphs that his Honour struck out from the statement of claim.  Leave to re-plead in relation to other paragraphs which were struck out was not expressly granted by his Honour; nor was it expressly refused.  The Court sees no reason in principle why the applicants should be debarred from seeking leave to further amend the statement of claim in relation to those paragraphs. 

The Court does not seek to encourage, nor for that matter to discourage, any re-pleading.  But if the applicants do seek to re-plead, they must, of course, do so by preparing a proper amended statement of claim in accordance with established principles, and it must be complete and precise. 

Counsel for the applicants does not resist an order for costs in the circumstances; but does ask that his clients not bear the costs occasioned by the presence in the appeal papers of the documents numbered 2 to 6 inclusive, and 11 to 14 inclusive, as described in the index to the appeal papers.  In our opinion, that is a matter which it is appropriate for the taxing officer to consider in due course; hence we express no view on the matter.

The Court orders that:

1. Leave to appeal from the judgment of Drummond J. given on 18 August 1995 be refused.

2. The applicants pay the costs of the respondent of the motion for leave to appeal.  The Court declines to make any special order for immediate taxation and payment of those costs.

This is to certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Court.

Associate

Dated:  6 November 1995

Counsel for the Appellants:      Mr J G Crowley QC

Mr P Hackett

Solicitor for the Appellants:        Paul Crowley

Counsel for the Respondent:      Mr P McMurdo

Mr G Bland

Solicitors for the Respondent:    Thompson King Connolly

Date of Hearing:                 6 November 1995

Date of Judgment:                6 November 1995