Guthreys Pacific Pty Ltd v Northern Territory Tourism & Promotions & Ors [1995] FCA 440

Guthreys Pacific Pty Ltd v Northern Territory Tourism & Promotions & Ors [1995] FCA 440

Summary judgment was refused because the evidence did not establish that NTTP or the Mooneys were holders of the cheque when the cross-claim was instituted. The evidence was consistent with Rikanu having possession, with the cheque having been indorsed or delivered to Rikanu for value, and with Rikanu retaining possession after dishonour. Because a fairly arguable defence remained on the holder requirement for recovery under s.76, the cross-claimants were not entitled to summary judgment.

Jurisdiction
Australia
Judgment Date
29 June 1995
Procedural Posture
Federal Court Proceeding Involving a Principal Application and Cross Claim Concerning a Dishonoured Cheque and Business Sale Agreement / Interlocutory Notices of Motion for Summary Judgment and for Stay of Any Summary Judgment
Outcome
The cross-claimants' application for summary judgment was dismissed with costs. The motion for a stay of any summary judgment was dismissed with no order as to costs.
Legal Topics
['dishonour of Cheque' 'holder of Cheque' 'summary Judgment' 'constructive Possession' 'transfer by Negotiation' 'misleading and Deceptive Conduct']
['bills of Exchange' 'practice and Procedure' 'trade Practices' 'contract'] ['dishonour of Cheque' 'holder of Cheque' 'summary Judgment' 'constructive Possession' 'transfer by Negotiation' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Federal Court Proceeding Involving a Principal Application and Cross Claim Concerning a Dishonoured Cheque and Business Sale Agreement / Interlocutory Notices of Motion for Summary Judgment and for Stay of Any Summary Judgment

Legal Issues

  1. 1 ['Whether NTTP or the Mooneys established that they were holders of the cheque for the purposes of recovering liquidated damages under s.76 of the Cheques and Payment Orders Act 1986 (Cth).' 'Whether summary judgment should be granted on the cross-claim relating to dishonour of the cheque.' 'Whether an adjournment should be granted to permit further evidence on possession of the cheque or to press a contractual summary judgment claim.' 'Whether it was necessary to stay any summary judgment obtained by the cross-claimants.']

Ratio Decidendi

Summary judgment was refused because the evidence did not establish that NTTP or the Mooneys were holders of the cheque when the cross-claim was instituted. The evidence was consistent with Rikanu having possession, with the cheque having been indorsed or delivered to Rikanu for value, and with Rikanu retaining possession after dishonour. Because a fairly arguable defence remained on the holder requirement for recovery under s.76, the cross-claimants were not entitled to summary judgment.

Court Disposition

The cross-claimants' application for summary judgment was dismissed with costs. The motion for a stay of any summary judgment was dismissed with no order as to costs.

Orders

  • ['The Notice of Motion filed by the first and second cross-claimants on 2 May 1995 be dismissed with costs.' 'The Notice of Motion filed by the first and second cross-respondents on 1 June 1995 be dismissed with no order as to costs.']