Esanda Finance Corporation Ltd v Warchalowski [1990] QSCFC 40

/ IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE: Mr Justice McPherson Mr Justice Moynihan Mr Justice Byrne REVISED CCPi-ES ISSUED > pC_ po urnau 0^0 No. 2633 of 1989 10 BRISBANE, 11 APRIL 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) BETWEEN: ESANDA FINANCE CORPORATION LIMITED Applicant (Respondent) (Plaintiff) -and- 20 ' 30 OLGA WARCHALOWSKI Respondent (Appellant) (Defendant) JUDGMENT 40 50 60 MR JUSTICE McPHERSON: This is an application by motion on notice for dismissal of an appeal by the applicant who, in the proceedings below, was, I think, the plaintiff in an action for recovery for possession. Ultimately, what happened in the court below was that judgment was given for the applicant for possession, and the appeal was brought against that judgment. However, the proceedings'below were by way of summary judgment,-’ which meant they were heard by the Master,1 and it was the Master who gave the judgment appealed against. The rules on this point are clear . Ari„ ■ appeal from the Master must be taken to a single judge of the Court and not to the Full Court , unless leave to appeal direct to the Full Court is granted. No such leave was granted in this case, which has —Govt. Printer, Qld. 40 50 60 1 [1990] QSCFC 40 -- 1 of 2 -- ] ] 20 30 the inevitable consequence that the appeal is incompetent. On behalf of the appellant, Mr Meredith of counsel has submitted that we should adjourn the matter, perhaps with a view to his ascertaining whether the present appeal can be redirected to the chamber judge, or perhaps to find out if he could obtain leave to appeal nunc pro tunc to the Full Court. We do not think that this is a case in which either of those courses ought, as a matter of discretion, to be adopted even if it were open to us to permit them. The appeal is admittedly incompetent, and the ordinary course that follows in such a i case is that the appeal ought to be dismissed, leaving it to th appellant to take whatever proceedings may be open to her to institute claims for further relief in respect of what she regards as the wrong that has been done to her. I would therefore accede to the applicant's motion and order that the appeal be dismissed, and that the appellant pay the respondent's costs of and incidental to the appeal and to the motion to be taxed. e 10 30 MR JUSTICE MOYNIHAN: I agree. MR JUSTICE BYRNE: I agree. MR JUSTICE McPHERSON: The order of the Court, therefore, will be: appeal dismissed; appellant is ordered to pay the respondent's costs of and incidental to the appeal and to the motion to be taxed. 50 50 60 60 I — Govt. Printer, Qld. a -- 2 of 2 --