WILLOUGHBY & ORS -v- CLAYTON UTZ [2007] WASCA 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 5 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:108/2005 | 18 SEPTEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 9/01/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time within which to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BERYL FRANCES WILLOUGHBY JOHN FRANCIS WILLOUGHBY MICHAEL STEPHEN WILLOUGHBY CLAYTON UTZ |
Catchwords: | Practice and procedure Application for extension of time in which to enter appeal for hearing No arguable prospect of success of appeal Turns on own facts |
Legislation: | Bankruptcy Act 1966 (Cth), s 178 Rules of the Supreme Court 1971 (WA), O 18 r 6 |
Case References: | Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96; (2002) 26 WAR 323 Bride v Peat Marwick Mitchell [1989] WAR 383 Bride v The Australian Bank, unreported; FCt SCt of WA; Library No 960565; 25 September 1996 Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 Edward James Bride as trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116 Francis v National Mutual Life Association of Australasia Ltd [1999] 2 Qd R 355 Girando v Girando (1997) 18 WAR 450 Jackamarra v Krakouer (1998) 195 CLR 516 Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47 Willoughby v Clayton Utz [2005] WASC 47; (2005) 193 FLR 373 Adsett v Berlouis (1992) 37 FCR 201 ANZ Banking Group Ltd v Capper [2001] NSWSC 946 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers - Western Australian Branch v BellABike Rottnest Pty Ltd [2005] WASCA 157 Baldry v Jackson [1976] 2 NSWLR 415 Blacker v National Australia Bank Ltd [2001] FCA 987 Christie v Harvey (1900) 2 WALR 146 Cockerill v Westpac Banking Corporation, unreported; Fed Ct of Australia; 9 March 1992 Crackenback Investments Pty Ltd v Wywsik, unreported; SCt of NSW; 25 August 1983 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Draney v Barry [2002] 1 Qd R 145 Edward James Bride as Trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Fingleton v The Queen (2005) 79 ALJR 1250 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 Gallo v Dawson (1990) 64 ALJR 458 Gargan v The Official Trustee in Bankruptcy, unreported; FCt Fed Ct of Australia; 4 November 1995 Girando v Girando (1997) 18 WAR 450 In re Brogden; Billing v Brogden (1888) 38 ChD 546 In re Chirnside, Digby v Union Trustee Co of Australia Ltd [1929] VLR 217 Lidden v Composite Buyers Ltd (1996) 67 FLR 560 Lucas v Public Transport Corporation Victoria [2000] VSCA 35 Metropolitan Bank Ltd… |
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- AGLC
- Willoughby v Clayton Utz [2007] WASCA 5
- Case
- [2007] WASCA 5
- Decision Date
CaseChat Overview and Summary
The matter before the court was an application by the appellant, Willoughby, seeking an extension of time to appeal against a decision of the primary judge in proceedings against the respondent, Clayton Utz. The application was brought before the Court of Appeal in the Federal Court of Australia. The primary judge had dismissed Willoughby's claim, and the time for appealing that decision had lapsed. Willoughby sought an extension of time to enter an appeal, arguing that the primary judge had erred in his determination of certain issues.
The legal issues before the court were whether the appeal had an arguable prospect of success and whether the application for an extension of time was made within a reasonable time. The court held that the appeal did not have an arguable prospect of success as it turned on Willoughby's own facts, and there was no basis for the appeal to succeed. The court also found that the application for an extension of time was not made within a reasonable time, as it had been brought three months after the time for appeal had lapsed.
In light of the above, the court dismissed the appeal and refused the application for an extension of time. The court held that the appeal did not have an arguable prospect of success, and the application was brought outside of a reasonable time. The appeal was dismissed, and the application for an extension of time was refused.
The legal issues before the court were whether the appeal had an arguable prospect of success and whether the application for an extension of time was made within a reasonable time. The court held that the appeal did not have an arguable prospect of success as it turned on Willoughby's own facts, and there was no basis for the appeal to succeed. The court also found that the application for an extension of time was not made within a reasonable time, as it had been brought three months after the time for appeal had lapsed.
In light of the above, the court dismissed the appeal and refused the application for an extension of time. The court held that the appeal did not have an arguable prospect of success, and the application was brought outside of a reasonable time. The appeal was dismissed, and the application for an extension of time was refused.
Orders
Orders of the court
Application for extension of time within which to appeal refused
Appeal dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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