Yevad Products Pty Limited v Brookfield [2005] FCAFC 177

FEDERAL COURT OF AUSTRALIA

Yevad Products Pty Limited v Brookfield [2005] FCAFC 177

PRACTICE AND PROCEDURE – setting aside judgment for failure to give full discovery – assessing possible impact of 'fresh evidence' - whether permissible to take into account possible lines of enquiry – likelihood of difference result - reasonable diligence - no explanation for failure to discover Briginshaw v Briginshaw (1938) 60 CLR 336 referred to Council of the City of Greater Wollongong Corporation v Cowan (1955) 93 CLR 435 cited Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied Grant v Australian Knitting Mills Limited (1933) 50 CLR 387 cited House v The King (1936) 55 CLR 499 applied Lexcray Pty Limited v Northern Territory [2003] NTCA 11 cited Londish v Gulf Pacific (1993) 45 FCR 128 cited McCann v Parsons (1954) 93 CLR 418 referred to Orr v Holmes (1948) 76 CLR 632 cited Ras Behari Lal v King-Emperor [1933] All ER Rep 723 cited YEVAD PRODUCTS PTY LIMITED (FORMERLY KNOWN AS DAVEY PRODUCTS PTY LIMITED) ACN 004 813 192 v IAN WALTER BROOKFIELD AND SEPTIC PRODUCTS AUSTRALIA PTY LIMITED (IN LIQ) SAD 24 of 2005 NICHOLSON, FINKELSTEIN & JACOBSON JJ ADELAIDE 31 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 24 of 2005

On appeal from a decision of a single Judge of the Federal Court of Australia

BETWEEN: YEVAD PRODUCTS PTY LIMITED

(formerly known as DAVEY PRODUCTS PTY LIMITED)

ACN 004 813 912

APPELLANT

AND: IAN WALTER BROOKFIELD

FIRST RESPONDENT

AND: SEPTIC PRODUCTS AUSTRALIA PTY LIMITED(IN LIQUIDATION)

SECOND RESPONDENT

JUDGES: NICHOLSON, FINKELSTEIN & JACOBSON JJ

DATE OF ORDER: 31 AUGUST 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. The order made by Branson J on 8 February 1996, to the extent that it dismissed the claims for breach of contract under s 14 of the Sale of Goods Act 1895 (SA), be set aside. 3. Otherwise, the appeal be dismissed. 4. The appellant pay the respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.