FEDERAL COURT OF AUSTRALIA
Yevad Products Pty Limited v Brookfield [2005] FCAFC 177
PRACTICE AND PROCEDURE – setting aside judgment for failure to give full discovery – assessing possible impact of ‘fresh evidence’ - whether permissible to take into account possible lines of enquiry – likelihood of difference result - reasonable diligence - no explanation for failure to discover
Briginshaw v Briginshaw (1938) 60 CLR 336 referred to
Council of the City of Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 cited
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied
Grant v Australian Knitting Mills Limited (1933) 50 CLR 387 cited
House v The King (1936) 55 CLR 499 applied
Lexcray Pty Limited v Northern Territory [2003] NTCA 11 cited
Londish v Gulf Pacific (1993) 45 FCR 128 cited
McCann v Parsons (1954) 93 CLR 418 referred to
Orr v Holmes (1948) 76 CLR 632 cited
Ras Behari Lal v King-Emperor [1933] All ER Rep 723 citedYEVAD PRODUCTS PTY LIMITED (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LIMITED) ACN 004 813 192 v IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LIMITED (IN LIQ)
SAD 24 of 2005NICHOLSON, FINKELSTEIN & JACOBSON JJ
ADELAIDE
31 AUGUST 2005
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 24 of 2005
On appeal from a decision of a single Judge of the Federal Court of Australia
BETWEEN:
YEVAD PRODUCTS PTY LIMITED
(formerly known as DAVEY PRODUCTS PTY LIMITED)
ACN 004 813 912
APPELLANTAND:
IAN WALTER BROOKFIELD
FIRST RESPONDENTAND:
SEPTIC PRODUCTS AUSTRALIA PTY LIMITED (IN LIQUIDATION)
SECOND RESPONDENTJUDGES:
NICHOLSON, FINKELSTEIN & JACOBSON JJ
DATE OF ORDER:
31 AUGUST 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.The order made by Branson J on 8 February 1996, to the extent that it dismissed the claims for breach of contract under s 14 of the Sale of Goods Act 1895 (SA), be set aside.
3.Otherwise, the appeal be dismissed.
4.The appellant pay the respondents’ costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 24 of 2005
On appeal from a decision of a single Judge of the Federal Court of Australia
BETWEEN:
YEVAD PRODUCTS PTY LIMITED
(formerly known as DAVEY PRODUCTS PTY LIMITED)
ACN 004 813 912
APPELLANTAND:
IAN WALTER BROOKFIELD
FIRST RESPONDENTAND:
SEPTIC PRODUCTS AUSTRALIA PTY LIMITED
(IN LIQUIDATION)
SECOND RESPONDENTJUDGE:
NICHOLSON, FINKELSTEIN & JACOBSON JJ
DATE:
31 AUGUST 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an appeal from a judgment of Lander J dated 9 September 2004, and consequential orders, setting aside orders made by Branson J in 1996 and 1997. On 8 February 1996, her Honour dismissed proceedings brought by the respondents against the appellant (“Yevad”). On 19 December 1997, her Honour ordered the first respondent (“Mr Brookfield”) to pay Yevad’s costs specified in an amount slightly in excess…
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- Case
- [2005] FCAFC 177
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the primary judge correctly applied the principles regarding fresh evidence and whether the primary judge correctly exercised his discretion in setting aside the trial judge's orders. Specifically, the court had to determine if the primary judge considered the degree of default and the impact of the evidence on the trial outcome. The court also had to consider whether the primary judge should have taken into account Yevad's continuing failure to make full discovery.
The court found that the primary judge correctly applied the principles regarding fresh evidence. The court held that the primary judge was entitled to consider the lines of inquiry that might have been available and whether the result would have been different if proper discovery had been made. The court also held that the primary judge correctly exercised his discretion in setting aside the trial judge's orders, despite Yevad's failure to make full discovery. The court held that the primary judge's orders should be varied to set aside the trial judge's orders to the extent that the claims for damages for breach of the implied conditions of merchantability and fitness for the purpose under s 14 of the Sale of Goods Act were prejudiced by the unavailability of the documents.
The court allowed the appeal in part, set aside the trial judge's orders to the extent that the claims for damages for breach of the implied conditions of merchantability and fitness for the purpose under s 14 of the Sale of Goods Act were prejudiced by the unavailability of the documents, and dismissed the appeal otherwise. The appellant was ordered to pay the respondents’ costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed in part.
2. The order made by Branson J on 8 February 1996, to the extent that it dismissed the claims for breach of contract under s 14 of the Sale of Goods Act 1895 (SA), be set aside.
3. Otherwise, the appeal be dismissed.
4. The appellant pay the respondents’ costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.