Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136

FEDERAL COURT OF AUSTRALIA

Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 PROCEDURE – application to adduce additional evidence on appeal – s 27 Federal Court of Australia Act 1976 (Cth) – discretion to receive further evidence on appeal – considerations – cogency of evidence – conduct of party – finality of litigation – discretion to be exercised judicially and consistently with judicial process – application refused Held:‑ appeal dismissed Federal Court of Australia Act 1976 (Cth) ss 27, 24(1A) Federal Court (Corporations) Rules 2000 r 2.2(1)(b) Federal Court Rules O 52 r 36

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd & Anor (2001) 117 FCR 424 cited CDJ v VAJ (1998) 197 CLR 172 referred to Cottrell v Wilcox [2002] FCAFC 53 cited Coulton v Holcombe (1986) 162 CLR 1 referred to Freeman v National Australia Bank Limited (2003) 2 ABC (NS) 32; [2003] FCAFC 200 cited Gao v Official Trustee in Bankruptcy [2003] FCAFC 84 cited Li Pei Ye v Crown Limited [2004] FCAFC 8 cited Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211cited Williams v Grant [2004] FCAFC 178 considered Wollongong Corporation v Cowan (1955) 93 CLR 435 referred to ANTHONY JOHN SOBEY v COLIN MCINTOSH NICOL & SAMUEL CHARLES DAVIES AS JOINT AND SEVERAL RECEIVERS AND MANAGERS OF THE PROPERTY OF GUISEPPE ANTONIO MERCORELLA AND THE SCHEME AND AS JOINT AND SEVERAL LIQUIDATORS OF THE SCHEME SAD 276 OF 2006

BRANSON, LINDGREN AND BESANKO JJ

22 AUGUST 2007

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 276 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ANTHONY JOHN SOBEY

Appellant

AND: COLIN MCINTOSH NICOL & SAMUEL CHARLES DAVIES AS JOINT AND SEVERAL RECEIVERS AND MANAGERS OF THE PROPERTY OF GUISEPPE ANTONIO MERCORELLA AND THE SCHEME AND AS JOINT AND SEVERAL LIQUIDATORS OF THE SCHEME