Morton, J.R.C. v Franks, M. & Ors [1995] FCA 498

IN THE FEDERAL COURT OF AUSTRALIA )No. NG 850 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JEFFREY ROY CHARLES MORTON Appellant

AND: MARK FRANKS First Respondent BARBARA FRANKS Second Respondent VIDEO RESOURCE GROUP INCORPORATED Third Respondent BUDLYRE PTY LIMITED (ACN 053-808-996) Fourth Respondent BENELAN PTY LIMITED (ACN 053-713-018) Fifth Respondent AND TRUEFEAT PTY LIMITED (ACN 053 664 010) Sixth Respondent CORAM: WILCOX, DRUMMOND & SACKVILLE JJ PLACE: SYDNEY DATE: 23 MAY 1995

EXTEMPORE REASONS FOR JUDGMENT

THE COURT: There are two issues before the Court. The first matter concerns the order made by the trial judge in respect of the sum of $US25,000, which was discussed by his Honour in his reasons for judgment of 10 August 1994. In respect of that matter, Mr Morton made an application for leave to educe fresh evidence. For reasons given by me during the course of the morning, the Court refused leave to educe that evidence. It is apparent that if the matter be considered on the basis of the material before his Honour, the conclusion reached by his Honour was plainly right. Indeed it is consistent with the evidence put before his Honour by the appellant himself. The other matter which has been argued concerns his Honour's findings about the beneficial ownership of certain shares. It is not necessary to set out all the material in respect of that, it is sufficient to say that his Honour discussed this in his reasons for judgment of 4 July, 1994. It appears from those reasons that until a very late stage the appellant did not reveal the existence of certain declarations of trust whereby he declared that he held the relevant shares on behalf of Mr Fred Schaffel. Mr Schaffel had given evidence that the shares held on his behalf were in fact held by him on behalf of the Franks Family Trust - that is to say on behalf of the applicants before his Honour. After the declarations of trust signed by Mr Morton came to light, his Honour gave Mr Morton an opportunity to explain what appeared to be an inconsistency between the existence and terms of those declarations and the case educed by Mr Morton. Despite the fact that Mr Morton was legally represented from that date - that is to say 4 July until 24 October - no evidence was filed dealing with that matter. When the matter was before the Court on 10 August 1994, no attempt was made to revisit this subject. Mr Morton has today asserted that there is other material which bears on the matter but he does not have that material in a form where he can make any application for leave to educe fresh evidence and neither has he given any reason why that material was not put in evidence when it should have been put on, namely during the hearing of the matter by the trial judge. There is no application before us for leave to educe fresh evidence and consequently, the second ground of appeal must be determined by reference to the material before his Honour. Once that is understood, the findings reached by his Honour are not only supported by the evidence but indeed inevitable. They directly reflect the unchallenged evidence of Mr Franks and Mr Schaffel. In my view, the appeal has no merit and ought to be dismissed with costs. DRUMMOND J: I agree. SACKVILLE J: I also agree. WILCOX J: The order of the Court will be that the appeal be dismissed with costs. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Court.