Robert John King, Long Paddock Pty Ltd v Stelmag Pty Ltd

[2007] ACTCA 2

ROBERT JOHN KING, LONG PADDOCK PTY LTD v STELMAG PTY LTD [2007] ACTCA 2 (2 March 2007)

APPEAL – misapprehension as to whether cross-appeal abandoned – no issue of principle.

Court Procedures Rules, r 6906

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 20-2005
No. SC 25 of 1997

Judges:  Crispin P, Gray and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:           2 March 2007

IN THE SUPREME COURT OF THE  )   No. ACTCA 20-2005
  )  No. SC 25 of 1997
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT JOHN KING

First Appellant

LONG PADDOCK PTY LTD

Second Appellant

AND:STELMAG PTY LTD

Respondent

ORDER

Judges:  Crispin P, Gray and Lander JJ
Date:  2 March 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The cross-appeal be allowed.

1. The judgment entered in favour of Stelmag Pty Ltd against Long Paddock Pty Ltd herein be further varied by increasing the judgment sum to $629,333.02.

IN THE SUPREME COURT OF THE  )   No. ACTCA 20-2005
  )  No. SC 25 of 1997
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT JOHN KING

First Appellant

LONG PADDOCK PTY LTD

Second Appellant

AND:STELMAG PTY LTD

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  2 March 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 10 August 2006 we upheld an appeal by the first appellant and ordered that the judgment against him be set aside and that there be a retrial of the issues raised between him and the respondent.  We did not address a cross-appeal by the respondent because we understood that it had been abandoned.  The Court was subsequently informed that this was not correct.  The matter was re-listed and directions given for further written submissions concerning the cross-appeal.  It is now clear that the absence of any argument addressed to the cross-appeal had not been attributable to its abandonment but, on the contrary, to an understanding that it was to be conceded.

1. In written submissions filed prior to the hearing of the appeal, counsel for the respondent had submitted that the cross claim should be allowed and judgment against both appellants varied by increasing the judgment sum to $629,333.02.  Whilst judgment against the first appellant has now been set aside, the contention that judgment against the second appellant should be increased by this amount is not opposed.

1. In our view it is unnecessary for the respondent to invoke r 6906 of the Court Procedures Rules (the ‘slip rule’) because the cross appeal has not been previously determined.  The more recent written submissions of counsel for the respondent appear to suggest that we would also be entitled to revisit the orders we made in relation to the appeal and the reasons for those orders.  However, the decisive issues raised on appeal, which concerned the personal liability of the first appellant, were essentially unrelated to those raised by the cross appeal and we are unable to see any basis for such a suggestion.

1. There will be orders that the cross-appeal be upheld and the order for judgment against the second appellant varied by increasing the judgment sum to $629,333.02.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 2 March 2007

Counsel for the Appellant:  Mr R Crowe SC with Mr R Livingston
Solicitor for the Appellant:  Bradley Allen Lawyers
Counsel for the Respondent:  Mr FJ Purnell SC with Mr DJC Mossop
Solicitor for the Respondent:  Lander & Co
Date of last submissions:  28 August 2006
Date of judgment:  2 March 2007