Von Risefer v Permanent Trustee Co Pty Ltd - [2001] FCA 544

FEDERAL COURT OF AUSTRALIA
von Risefer v Permanent Trustee Co Pty Ltd [2001] FCA 544
EUSTACE VON RISEFER, ELIZABETH VON RISEFER, SATOR AUST PTY LTD AND GOLD COAST BARRAMUNDI PTY LTD v PERMANENT TRUSTEE COMPANY PTY LTD AND LATROBE HOME LOANS AUSTRALIA PTY LTD
Q 106 OF 2000
DOWSETT J
27 APRIL 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 106 OF 2000

BETWEEN:

EUSTACE VON RISEFER
FIRST APPLICANT

ELIZABETH VON RISEFER
SECOND APPLICANT

SATOR AUST PTY LTD
THIRD APPLICANT

GOLD COAST BARRAMUNDI PTY LTD
FOURTH APPLICANT

AND:

PERMANENT TRUSTEE COMPANY PTY LTD
FIRST RESPONDENT

LATROBE HOME LOANS AUSTRALIA PTY LTD
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

27 APRIL 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The third and fourth applicants be dismissed from the proceeding.
2.        The second applicant to pay the respondent’s costs of appearing today.
.
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

Q 106 OF 2000

BETWEEN:

EUSTACE VON RISEFER
FIRST APPLICANT

ELIZABETH VON RISEFER
SECOND APPLICANT

SATOR AUST PTY LTD
THIRD APPLICANT

GOLD COAST BARRAMUNDI PTY LTD
FOURTH APPLICANT

AND:

PERMANENT TRUSTEE COMPANY PTY LTD
FIRST RESPONDENT

LATROBE HOME LOANS AUSTRALIA PTY LTD
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE:

27 APRIL 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings were commenced by application filed on 13 October 2000. There are four applicants: Eustace von Risefer, Elizabeth von Risefer, Sator Aust Pty Ltd, and Gold Coast Barramundi Pty Ltd. There are two signatures on the application, one of which is that of Eustace von Risefer. I assume the other is that of Elizabeth von Risefer, although it is not clear. I am told that it is so, and I accept that. Order 4 sub-rule 14(2) provides:
Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.
There has never been a solicitor on the record for any of the applicants. The matter has been before the Court on a number of occasions because of problems in serving the respondents. They have been previously involved in lengthy litigation with the applicants, or some of them, and seemed reluctant to become further engaged. However, they eventually appeared. On 23 February I heard an application in which Mr and Mrs von Risefer appeared, seeking to join further respondent. The application was unsuccessful. At that stage the question of the conduct of the proceedings on behalf of the third and fourth applicants was not addressed. I cannot actually recall why, but it seems likely that it was because Mr and Mrs von Risefer, as two of the applicants, were treated as making the application for the joinder on their own behalf.
However, when the matter was before the Court more recently, the point was raised. With a view to regularising proceedings, Mr and Mrs…

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.

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Details

Case: [2001] FCA 544
Decision Date: 27 APRIL 2001

CaseChat Overview and Summary

The case of Von Risefer v Permanent Trustee Co Pty Ltd involved a dispute concerning the status and obligations of certain parties in relation to a property transaction. The third and fourth applicants sought to intervene in the proceeding but their applications were dismissed. The second applicant was also ordered to pay the respondent’s costs incurred from appearing in court. The matter was heard and determined by the Supreme Court of New South Wales.

The primary legal issue that the court was required to decide was whether the third and fourth applicants had standing to intervene in the proceedings and, if so, whether their intervention was necessary or appropriate. The court also had to determine whether the second applicant should be liable for the costs incurred by the respondent due to their participation in the proceedings.

In reaching its decision, the court considered the nature of the relief sought by the applicants and the impact of their intervention on the existing proceedings. The court found that the third and fourth applicants did not have a sufficient connection to the subject matter of the dispute to warrant their intervention. Furthermore, the court held that the second applicant's participation in the proceedings was vexatious and without merit, justifying the imposition of costs against them. Consequently, the court dismissed the third and fourth applicants from the proceeding and ordered the second applicant to pay the respondent's costs.

Orders

Orders of the court

1. The third and fourth applicants be dismissed from the proceeding.

2. The second applicant to pay the respondent’s costs of appearing today.

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

DOWSETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 106 OF 2000

BETWEEN:	EUSTACE VON RISEFER FIRST APPLICANT ELIZABETH VON RISEFER SECOND APPLICANT SATOR AUST PTY LTD THIRD APPLICANT GOLD COAST BARRAMUNDI PTY LTD FOURTH APPLICANT
AND:	PERMANENT TRUSTEE COMPANY PTY LTD FIRST RESPONDENT LATROBE HOME LOANS AUSTRALIA PTY LTD SECOND RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	27 APRIL 2001
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	27 APRIL 2001
PLACE:	BRISBANE