Yevad Products Pty Ltd v Brookfield

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FEDERAL COURT OF AUSTRALIA

Yevad Products Pty Ltd v Brookfield [2005] FCAFC 263

PRACTICE AND PROCEDURE – application to reopen appeal and to vary orders of full court  after entered – grounds of appeal alleged not to have been considered – jurisdiction to reopen – reopening to order new trial on particular issue – stay of costs order – reference to trial judge of application for summary dismissal of respondents’ motion

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules O 35 r 7(1), O 35 r 7(2), O 35 r 7(4)

Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349
Bailey v Marinoff (1971) 125 CLR 529
BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336
Brookfield v Yevad Products Pty Ltd [2004] FCA 1164
Brookfield v Davey Products Pty Ltd (1998) ATPR 41-635
Brookfield v Davey Products Pty Ltd (1996) 14 ACLC 303
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Castanho v Brown & Root (UK) Ltd [1981] AC 557
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324
DJL v Central Authority (2000) 201 CLR 226
Donkin v AGC (Advances) Ltd [1995] FCA 695
Fox v Commissioner for Superannuation (No 2) (1999) 88 FCR 416
Gamser v Nominal Defendant (1977) 136 CLR 145
Hunter v Chief Constable of West Midlands Police [1982] AC 529
McCann v Parsons (1954) 93 CLR 418
TJM Products Pty Ltd v A & P Tyres Pty Ltd (1987) 17 FCR 390
Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177
Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543
Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310

YEVAD PRODUCTS PTY LTD (formerly known as DAVEY PRODUCTS PTY LTD) v IAN WALTER BROOKFIELD and SEPTIC PRODUCTS AUSTRALIA PTY LTD (IN LIQUIDATION)
SAD 24 of 2005

NICHOLSON, FINKELSTEIN and JACOBSON JJ
16 DECEMBER 2005
PERTH (heard via VIDEOLINK TO MELBOURNE, SYDNEY & ADELAIDE)


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 24 OF 2005

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:

YEVAD PRODUCTS PTY LTD
(formerly known as DAVEY PRODUCTS PTY LTD)
ACN 004 813 912
APPELLANT

AND:

IAN WALTER BROOKFIELD
FIRST RESPONDENT

SEPTIC PRODUCTS AUSTRALIA PTY LTD
(IN LIQUIDATION)
SECOND RESPONDENT

JUDGE:

NICHOLSON, FINKELSTEIN and JACOBSON JJ

DATE OF ORDER:

16 DECEMBER 2005

WHERE MADE:

PERTH (via VIDEOLINK TO SYDNEY & ADELAIDE)

THE COURT ORDERS THAT:

1.        Order 2 made on 31 August 2005 be revoked and in lieu thereof it be ordered:

2.Order 1 of the orders made by Lander J on 23 December 2004 be set aside and in place thereof it be ordered:

(a)Order 1 made by Branson J on 8 February 1996 be set aside to the extent that it dismissed the respondent’s claims made…

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Details
Case
[2005] FCAFC 263
Decision Date

CaseChat Overview and Summary

Yevad Products Pty Ltd, the appellant, brought an appeal against a decision made by Lander J, which was in turn an appeal against a decision by Branson J. The appellant sought to challenge the reinstatement of claims made by the respondent, Brookfield, pursuant to section 14 of the Sale of Goods Act 1895 (SA). The case was heard in the South Australian Supreme Court. The central issue before the court was whether the respondent's claims, which were dismissed by Branson J, should be reinstated and if the appeal by the appellant against the reinstatement should be stayed pending the outcome of potential appeals to higher courts.

The court considered the procedural history of the case and the applicable legal principles. The court noted that the original decision by Branson J dismissed the respondent’s claims under section 14 of the Sale of Goods Act 1895 (SA), and this decision was later overturned by Lander J. The appellant argued that the reinstatement of the claims was incorrect and sought to appeal this decision. The court held that the reinstatement of the respondent’s claims made under section 14 should be set aside, and the issue should be remitted for a new trial. Additionally, the court decided to grant the appellant’s motion to stay the execution of certain orders pending the outcome of the appellant’s application for special leave to appeal to the High Court and the resolution of the new trial.

In light of the above, the court issued several orders. Firstly, it revoked certain orders made previously and set aside the reinstatement of the respondent’s claims to the extent that they relied on section 14 of the Sale of Goods Act 1895 (SA). Secondly, it ordered that the application for relief under section 14 be remitted to a judge for a new trial. Thirdly, the court granted the appellant’s motion to stay certain orders until the determination of the appellant’s application for special leave to appeal to the High Court and the resolution of the new trial. Lastly, it referred the appellant’s motion for summary dismissal of the respondent’s notice of motion to the judge who would hear the new trial, and reserved costs for later determination.

Orders

Orders of the court

1. Order 2 made on 31 August 2005 be revoked and in lieu thereof it be ordered:

2. Order 1 of the orders made by Lander J on 23 December 2004 be set aside and in place thereof it be ordered:

(a) Order 1 made by Branson J on 8 February 1996 be set aside to the extent that it dismissed the respondent’s claims made in reliance on s 14 of the Sale of Goods Act 1895 (SA);

(b) The application, to the extent that it claimed relief in reliance on s 14 of the Sale of Goods Act 1895 (SA) be remitted to a judge of the Court for a new trial on that issue.

2. The appellant’s notice of motion filed on 23 November 2005 for stay of Order 4 made by Lander J on 23 December 2004 be granted and Order 4 stayed until:

(a) the determination of the appellant’s application for special leave to appeal to the High Court and, if the application is granted, until determination of the appeal, and

(b) the determination of the issue referred for a new trial by Order 1 of these orders and any appeals therefrom.

3. The appellant’s notice of motion filed on 23 November 2005 for summary dismissal of the first respondent’s notice of motion dated 10 November 2005 be referred to the judge charged with hearing the new trial referred to in Order 1 of these orders.

4. Costs reserved.

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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