FEDERAL COURT OF AUSTRALIA
Upton v Tasmanian Perpetual Trustees Pty Ltd
[2006] FCA 1336
PRACTICE AND PROCEDURE – appeal – application for security for costs – discretionary nature – consideration of relevant factors - promptness of application - stifling of appeal - prospects of success of appeal
Federal Court of Australia Act 1976 (Cth), s 56
Land Titles Act 1980 (Tas)
Trade Practices Act 1974 (Cth)Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681, referred to
Fletcher and Others v Commissioner of Taxation (1992) 37 FCR 288, followed
Sun World International Inc v Registrar, Plant Breeder’s Rights (unreported, Marshall J, 8 December 1997), referred to
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1231, applied
Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1088, referred toRICHARD AUSTIN UPTON v TASMANIAN PERPETUAL TRUSTEES PTY LTD
TAD 32 OF 2006MARSHALL J
12 OCTOBER 2006
HOBART
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 32 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RICHARD AUSTIN UPTON
AppellantAND:
TASMANIAN PERPETUAL TRUSTEES PTY LTD
Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
12 OCTOBER 2006
WHERE MADE:
HOBART
THE COURT ORDERS THAT:
1The appellant is to provide security for the respondent’s costs of the appeal in the sum of $8333 in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the Tasmania District Registrar of the Court.
2The appeal is stayed until such security is provided or until further order.
3The appellant is to pay the respondent’s costs of the motion filed 26 September 2006.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 32 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
RICHARD AUSTIN UPTON
AppellantAND:
TASMANIAN PERPETUAL TRUSTEES PTY LTD
Respondent
JUDGE:
MARSHALL J
DATE:
12 OCTOBER 2006
PLACE:
HOBART
REASONS FOR JUDGMENT
1Mr Upton has appealed from a judgment of Heerey J in which his Honour dismissed an application under the Trade Practices Act 1974 (Cth), the accrued common law jurisdiction of the Court and its associated jurisdiction under the Land Titles Act 1980 (Tas).
2The primary judge rejected Mr Upton’s claims that Tasmanian Perpetual Trustees Pty Ltd engaged in misleading or deceptive conduct and unconscionable conduct, breached its duty of good faith as a mortgagee and breached its overlapping duty imposed by the Land Titles Act.
3His Honour held that Tasmanian Perpetual Trustees had acted in good faith as a mortgagee in selling the former property of Mr Upton, when he defaulted on his mortgage. He rejected Mr Upton’s submission that Tasmanian Perpetual Trustees sold the land for much less than its market value. In the concluding paragraph of his judgment, Heerey J said:
‘In my opinion this was a hopeless case, and should have been recognised as such from the outset. Given the initial auction and…
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- Case
- [2006] FCA 1336
- Decision Date
CaseChat Overview and Summary
The central issue for the court to decide was whether the appellant had demonstrated a serious question to be tried on the merits of his claim. The respondent argued that the appellant had not established a prima facie case and that the appeal should be dismissed. The appellant, on the other hand, contended that the primary judge had erred in finding that he had not made out a serious question to be tried. The court had to determine whether the appellant's case was sufficiently strong to warrant an appeal being heard.
The court found that the appellant had not established a serious question to be tried in relation to the central issue of whether the property had been transferred to the appellant's company. The court held that the appellant's case was speculative and lacked evidentiary support. The court also found that the appellant had failed to demonstrate that the primary judge had erred in law or in fact. As a result, the appeal was dismissed and the appellant was ordered to provide security for the respondent's costs of the appeal. The appeal was stayed until such security was provided or until further order. The appellant was also ordered to pay the respondent's costs of the motion filed on 26 September 2006.
Orders
Orders of the court
1 The appellant is to provide security for the respondent’s costs of the appeal in the sum of $8333 in such form as may be agreed between the parties or, failing agreement, in a form acceptable to the Tasmania District Registrar of the Court.
2 The appeal is stayed until such security is provided or until further order.
3 The appellant is to pay the respondent’s costs of the motion filed 26 September 2006.
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
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