Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13

New South Wales Court of Appeal

CITATION: Milltec Australia Pty Ltd v Burnes & Anor [2006] NSWCA 13

HEARING DATE(S): 23 September 2005

JUDGMENT DATE: 13 February 2006

JUDGMENT OF: Handley JA at 1; Hodgson JA at 29; Campbell AJA at 30

DECISION: (1) Appeal as of right dismissed as incompetent.; (2) Leave to appeal granted limited to grounds 6 and 7 of the notice of appeal of 2 November 2004.; (3) Summons for leave to appeal otherwise dismissed.; (4) Appeal allowed in part.; (5) Declare that the first respondent is accountable to the appellant for the profit of $21,500 made by him from the sale of a second hand Buhler separator and a second hand ribbon mixer to OBP Pty Ltd invoiced to that company on 25 May 2000.; (6) Order that the first respondent pay $21,500 to the appellant together with interest at Court rates from 1 June 2000.; (7) Appeal otherwise dismissed and orders 1-7 and 9-11 made by Cripps AJ on 6 July 2004 confirmed.; (8) The appellant is to pay one-half of the respondents' costs of the appeal, the objection to competency and the summons for leave to appeal.

CATCHWORDS: APPEAL – competency – amount involved – claim and value must be capable of reasonable support - CONVERSION – claim to bare declaration and inquiry without proof of cause of action misconceived - JUDGMENTS AND ORDERS – claim to declaration and inquiry as to damages – cause of action must be established at trial – inquiry consequential - D

LEGISLATION CITED: Supreme Court Act 1970

Brightside & Carbrook (Sheffield) Co-operative Society Ltd v Phillips [1964] 1 WLR 185 Cole v The Commonwealth (1961) 106 CLR 653 CASES CITED: Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 McGrory v Alderdale Estate Co Ltd [1918] AC 503 McKenna & Armistead Pty Ltd v Excavations Pty Ltd (1956) 57 SR (NSW) 515