Whittingham v SA Farmers Fuel Pty Ltd

[2008] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

WHITTINGHAM v SA FARMERS FUEL PTY LTD

[2008] SASC 276

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)

17 October 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - DISCHARGE BY AGREEMENT - NOVATION

Application for permission to appeal to the Full Court, from a decision of a single Judge - whether a point of principle arises - whether the interests of justice favour a grant of permission.

Held:  permission to appeal granted.

Supreme Court Civil Rules 2006 (SA) s 282, referred to.
South Australian Farmers Fuel Pty Ltd v Whittingham [2008] SASC 211; SA Farmers Fuel P/L & Anor v Whittingham & Anor [2008] SAMC 30; SA Government Financing Authority v Bank of New Zealand [2002] SASC 56; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61, considered.

WHITTINGHAM v SA FARMERS FUEL PTY LTD
[2008] SASC 276

Full Court:      Gray, Sulan and Kelly JJ

THE COURT

1. This is an application for permission to appeal from a decision of a judge of this Court,[1] pursuant to section 282(1)(b) of the Supreme Court Civil Rules 2006 (SA).  The learned Judge dismissed an appeal from a judgment of a magistrate following a trial.

   [1]    South Australian Farmers Fuel Pty Ltd v Whittingham [2008] SASC 211 (David J).

2. South Australian Farmers Fuel Pty Ltd and a related company, AF Fuels Pty Ltd, the plaintiffs and respondents, had claimed $13,000 partly as a debt and partly as damages arising from an alleged breach of contract on the part of Mr and Mrs Whittingham, the defendants and applicants.  The Magistrate dismissed the claim.[2]  On appeal, the Judge of this Court allowed the appeal, set aside the order of the Magistrate and entered judgment in favour of South Australian Farmers Fuel Pty Ltd and AF Fuels Pty Ltd in the amount of $13,000.

   [2]    SA Farmers Fuel P/L & Anor v Whittingham & Anor [2008] SAMC 30 (Forrest M).

3. Permission to appeal is sought on the ground that the learned Judge erred in findings made with respect to novation of contract and whether the contract contained a penalty clause.  It was said that questions of law arose in respect of each issue and that the judgment was attended by sufficient doubt to warrant a grant of permission.

4. The Court has had the opportunity to review the application for permission, the detailed outline of argument, the affidavit filed in support and the proposed grounds of appeal.  It is the view of the Court that questions of general principle do arise and that the interests of justice warrant a grant of permission to appeal. [3]

   [3]    Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3] (Doyle CJ, Nyland and Gray JJ); SA Government Financing Authority v Bank of New Zealand [2002] SASC 56 at [12]-[13].

5. The order of the Court is that permission to appeal is granted in the terms sought.