Rossmick No 1 Pty Ltd v Bank of Queensland [2012] NSWCA 85

Rossmick No 1 Pty Ltd v Bank of Queensland [2012] NSWCA 85

The constitutional proceeding and the application for leave to appeal should be stayed as there is no utility in their continuation, the real issues can be determined in the Equity Division proceedings, and management of the litigation in line with the overriding purpose requires this course. Costs should be dealt with in the substantive proceedings.

Parties
First Appellant: Rossmick No 1 Pty Ltd; Second Appellant: Rossmick No 2 Pty Ltd; Third Appellant: Michael Bradley; Fourth Appellant: Ross Chapman; Fifth Appellant: Luke Nolan; Sixth Appellant: Jude Financial Services Pty Ltd; Seventh Appellant: Russell Jude Edward Gardner; Eighth Appellant: Penelope Ann Gardner; Ninth Appellant: SME Business Assist Pty Ltd; Tenth Appellant: Scott Rolfe McCoy; Eleventh Appellant: Tomala No 1 Pty Ltd; Twelfth Applicant: Casmick Pty Ltd; Thirteenth Appellant: Nolan No 1 Pty Ltd; Fourteenth Appellant: Nadine Nolan; First Respondent: Bank of Queensland Ltd; Second Respondent: David Liddy; Third Respondent: Donna Quinn; Fourth Respondent: Garry Allsop; Fifth Respondent: Industrial Court of New South Wales
Jurisdiction
Australia
Judgment Date
04 April 2012
Procedural Posture
Civil / Application for Leave to Appeal – Interlocutory Appeal – Procedural Orders
Outcome
Application for leave to appeal stayed; underlying constitutional proceedings stayed; costs to be determined in principal proceedings.
Legal Topics
Abuse of Process, Costs, Transfer of Proceedings, Cross Vesting, Pleadings, Stay of Proceedings
Civil Procedure Constitutional Law Abuse of Process Costs Transfer of Proceedings Cross Vesting Pleadings Stay of Proceedings

Case Brief

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Parties

Rossmick No 1 Pty Ltd

First Appellant

Rossmick No 2 Pty Ltd

Second Appellant

Michael Bradley

Third Appellant

Ross Chapman

Fourth Appellant

Luke Nolan

Fifth Appellant

Jude Financial Services Pty Ltd

Sixth Appellant

Russell Jude Edward Gardner

Seventh Appellant

Penelope Ann Gardner

Eighth Appellant

SME Business Assist Pty Ltd

Ninth Appellant

Scott Rolfe McCoy

Tenth Appellant

Tomala No 1 Pty Ltd

Eleventh Appellant

Casmick Pty Ltd

Twelfth Applicant

Nolan No 1 Pty Ltd

Thirteenth Appellant

Nadine Nolan

Fourteenth Appellant

Bank of Queensland Ltd

First Respondent

David Liddy

Second Respondent

Donna Quinn

Third Respondent

Garry Allsop

Fourth Respondent

Industrial Court of New South Wales

Fifth Respondent

Procedural Posture

Civil / Application for Leave to Appeal – Interlocutory Appeal – Procedural Orders

Legal Issues

  1. 1 Whether the application for leave to appeal should be stayed
  2. 2 Whether separate proceedings in the Federal Court were an abuse of process
  3. 3 Whether costs should be determined by the trial judge in the principal Equity Division proceedings

Ratio Decidendi

The constitutional proceeding and the application for leave to appeal should be stayed as there is no utility in their continuation, the real issues can be determined in the Equity Division proceedings, and management of the litigation in line with the overriding purpose requires this course. Costs should be dealt with in the substantive proceedings.

Court Disposition

Application for leave to appeal stayed; underlying constitutional proceedings stayed; costs to be determined in principal proceedings.

Orders

  • Stay the application for leave to appeal from the orders of Logan J made in the Federal Court on 19 September 2008 (QUD 309/2008).
  • Stay the underlying proceedings, being matter QUD 227/2007 in the Federal Court, transferred to the Supreme Court of New South Wales.