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  • Unreported Judgment

Zinace Pty Ltd v Tomlin

 

[2003] QCA 102

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

DELIVERED EX TEMPORE ON:

12 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2003

JUDGES:

de Jersey CJ, Davies JA and Williams JA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where issue as to ownership of cattle under a stock mortgage was determined by a Magistrate – where applicant applied for leave to appeal against a decision of a District Court Judge on appeal from decision by Magistrate – where only questions of fact involved in the appeal – whether there is an important question of law or a question of general importance such that leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118

COUNSEL:

P Gorman for the applicant

I Perkins for the respondent

SOLICITORS:

V J Byrne for the applicant

Mallesons Stephen Jaques for the respondent

WILLIAMS JA:  This is an application for leave, pursuant to section 118 of the District Court Act, to appeal from a decision of a District Court Judge given on appeal from a determination by a Magistrate pursuant to section 425 of the Police Powers And Responsibilities Act 2000 as to the ownership of some 101 cattle and three horses.

 

On the hearing of the application pursuant to section 425, the claimants to the stock were the National Australia Bank on the one hand and Zinace Pty Ltd on the other.  The National Australia Bank claimed its interest pursuant to stock mortgages which it held over stock the property of one Lynton Freeman.

 

The stock mortgages in question were given on 29 May 1992, 16 September 1996 and 19 December 1997.  It was the latter which was regarded both by the Magistrate and the District Court Judge as the operative stock mortgage.  Each of those stock mortgages referred to stock bearing the brand OLQ.  Lynton Freeman has an interest in the company Zinace Pty Ltd and it was his contention that the stock in question had been acquired by that company and were not subject to the stock mortgages. 

 

The 101 cattle in question were located on the property of a Mrs Williams at Skeleton Creek shortly after receivers had been appointed by the bank on 12 October 2000.   As a result of finding those cattle there, Lynton Freeman was charged with stealing them but was acquitted of that offence in March 2002.  It was consequent upon that resolution of the criminal proceedings that the police initiated the application under section 425 of the Police Powers and Responsibilities Act to determine ownership of the stock.

 

The Magistrate heard evidence over some days and in his lengthy reasons indicated that Lynton Freeman had created a confusing situation with respect to his dealings in cattle at the relevant time.  The Magistrate carefully analysed the evidence as to brands and awarded Zinace Pty Ltd 11 cattle and determined that the balance were the property of the bank.

 

It was from that determination that the appeal was taken to the District Court.  The learned District Court Judge carefully analysed the reasoning of the Magistrate and with one exception concluded that the Magistrate had correctly determined ownership of the cattle.

 

The learned District Court Judge noted that:

 

"The Magistrate had also determined that all cattle with indistinct and/or non visible brands and cattle with a foreign brand other than VPB being held at Skeleton Creek belonged to the National Australia Bank.  It is in that regard I think he erred".

 

The learned District Court Judge then identified 10 additional cattle and the three horses as being property which it should be declared was the property of Zinace Pty Ltd.

 

Section 118 of the District Court Act now gives this Court a general discretion with respect to the granting of leave, but ordinarily an applicant would be able to point to some important question of law or some question of general importance in order to substantiate the application. 

 

Here it is clear, in my view, that the only questions involved in the proceedings are questions of fact.  They have been fully considered at two judicial hearings and, in my view, there is no question which ought to be the subject of further consideration by this Court.

 

In the circumstances I am not satisfied that a case for the granting of leave to appeal has been made out.  I would dismiss the application with costs.

 

THE CHIEF JUSTICE:  I agree.

 

DAVIES JA:  I agree.

 

THE CHIEF JUSTICE:  The application is dismissed with costs to be assessed.

Close

Editorial Notes

  • Published Case Name:

    Zinace Pty Ltd v Tomlin & Ors

  • Shortened Case Name:

    Zinace Pty Ltd v Tomlin

  • MNC:

    [2003] QCA 102

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Davies JA, Williams JA

  • Date:

    12 Mar 2003

Litigation History

No Litigation History

Appeal Status

No Status