Maher v Commonwealth Banking Corporation [2002] FCAFC 104; [2002] FCA 471

Maher v Commonwealth Banking Corporation [2002] FCAFC 104 Maher v Commonwealth Banking Corporation [2002] FCA 471

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Maher v Commonwealth Banking Corporation [2002] FCA 471

practice and procedure – appeal from orders of primary judge dismissing the proceedings under Order 20 rule 2 Federal Court Rules – appeal allowed

LANDLORD AND TENANT – tenancy at sufferance – action of trespass Bankruptcy Act 1966 (Cth) s 58(1) Transfer of Land Act 1958 (Vic) s 42(2) Federal Court Rules Order 20 rule 2, Order 12 rules 1, 3 and 5 Graham v Peat (1801) 1 East 244 applied Burnham v Carroll Musgrove Theatres Ltd & Victoria Arcade Ltd (1928) 41 CLR 540 referred to Fry v Metzelaar [19455] VLR 65 referred to Burke v Dawes (1938) 59 CLR 1 referred to Barba v Gas & Fuel Corporation of Victor (1976) 136 CLR 120 referred to Commercial Bank of Australia Ltd v McCaskill (1897) 23 VLR 10 referred to Robertson v Keith (1870) 1 VLR (E) 11 referred to Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 referred to Chesterfield v Pitisano [1964] VR 709 referred to Hall v Nominal Defendant (1966) 117 CLR 423 applied Wickstead v Browne (1992) 30 NSWLR 1 applied Dart v Norwich Union Life Australia Ltd [2002] FCA 168 applied