Zinace Pty Ltd v Tomlin

[2003] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:	Zinace P/L v Tomlin & Ors [2003] QCA 102
PARTIES:	ZINACE PTY LTD ACN 072 335 712 (appellant/applicant) v DENNIS TOMLIN (first respondent) ADAM NOEL FREEMAN (second respondent) KRISTEN LYNNE FREEMAN (third respondent) JEFFREY EARL GRADY AND PHILLIP ARTHUR HENNESSY (fourth respondent) NORMA PURSER (fifth respondent) NATIONAL AUSTRALIA BANK ACN 004 044 937 (sixth respondent/respondent)
FILE NO/S:	Appeal No 195 of 2003 DC No 4343 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX	12 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2003
JUDGES:	de Jersey CJ, Davies JA and Williams JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where issue as to ownership of cattle under a stock mortgage was determined by a Magistrate – where applicant applied for leave to appeal against a decision of a District Court Judge on appeal from decision by Magistrate – where only questions of fact involved in the appeal – whether there is an important question of law or a question of general importance such that leave to appeal should be granted
District Court of Queensland Act 1967 (Qld), s 118
COUNSEL:	P Gorman for the applicant I Perkins for the respondent
SOLICITORS:	V J Byrne for the applicant Mallesons Stephen Jaques for the respondent

WILLIAMS JA: This is an application for leave, pursuant to section 118 of the District Court Act, to appeal from a

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decision of a District Court Judge given on appeal from a ownership of some 101 cattle and three horses.

determination by a Magistrate pursuant to section 425 of the

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On the hearing of the application pursuant to section 425, the claimants to the stock were the National Australia Bank on the one hand and Zinace Pty Ltd on the other. The National Australia Bank claimed its interest pursuant to stock mortgages which it held over stock the property of one Lynton

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Freeman.

The stock mortgages in question were given on 29 May 1992, 16 September 1996 and 19 December 1997. It was the latter which was regarded both by the Magistrate and the District Court

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Judge as the operative stock mortgage. Each of those stock mortgages referred to stock bearing the brand OLQ. Lynton Freeman has an interest in the company Zinace Pty Ltd and it was his contention that the stock in question had been acquired by that company and were not subject to the stock

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mortgages.

The 101 cattle in question were located on the property of a

Mrs Williams at Skeleton Creek shortly after receivers had

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been appointed by the bank on 12 October 2000. As a result

of finding those cattle there, Lynton Freeman was charged with

stealing them but was acquitted of that offence in March 2002.

It was consequent upon that resolution of the criminal

proceedings that the police initiated the application under	10
section 425 of the Police Powers and Responsibilities Act to determine ownership of the stock.
The Magistrate heard evidence over some days and in his
lengthy reasons indicated that Lynton Freeman had created a	20
confusing situation with respect to his dealings in cattle at the relevant time. The Magistrate carefully analysed the evidence as to brands and awarded Zinace Pty Ltd 11 cattle and determined that the balance were the property of the bank.
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It was from that determination that the appeal was taken to
the District Court. The learned District Court Judge
carefully analysed the reasoning of the Magistrate and with
one exception concluded that the Magistrate had correctly
determined ownership of the cattle.	40
The learned District Court Judge noted that:

"The Magistrate had also determined that all cattle with

indistinct and/or non visible brands and cattle with a	50
foreign brand other than VPB being held at Skeleton Creek belonged to the National Australia Bank. It is in that regard I think he erred".

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The learned District Court Judge then identified 10 additional cattle and the three horses as being property which it should be declared was the property of Zinace Pty Ltd.

Section 118 of the District Court Act now gives this Court a	10
general discretion with respect to the granting of leave, but ordinarily an applicant would be able to point to some important question of law or some question of general importance in order to substantiate the application.
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Here it is clear, in my view, that the only questions involved
in the proceedings are questions of fact. They have been
fully considered at two judicial hearings and, in my view,
there is no question which ought to be the subject of further
consideration by this Court.	30
In the circumstances I am not satisfied that a case for the granting of leave to appeal has been made out. I would dismiss the application with costs.
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THE CHIEF JUSTICE: I agree.
DAVIES JA: I agree.
THE CHIEF JUSTICE: The application is dismissed with costs to
be assessed.	50

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