Alonso v SRS Investments (WA) Pty Ltd
[2012] WASC 168 (S)
•31 JULY 2012
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | ALONSO -v- SRS INVESTMENTS (WA) PTY LTD [2012] WASC 168 (S) |
| CORAM | : EDELMAN J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : JOSE HIGINIO ALONSO |
Plaintiff
AND
SRS INVESTMENTS (WA) PTY LTD
First Defendant
SARA RHIAIN SANDFORD
Second Defendant
Catchwords:
Practice and procedure - Interest - Date from which interest commences
Practice and procedure - Application for leave to issue a subpoena for documents after delivery of reasons - Documents immaterial to legal issues at trial - Second defendant invited before trial to apply for an adjournment but she did not seek adjournment- Second defendant reminded several times to issue subpoena if needed but subpoena not sought before trial or during trial
Legislation:
Nil
[2012] WASC 168 (S)
Result:
Orders made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr H Paiker |
| First Defendant | : | No appearance |
| Second Defendant | : | In person |
Solicitors:
| Plaintiff | : | Paiker & Overmeire |
| First Defendant | : | No appearance |
| Second Defendant | : | In person |
Case(s) referred to in judgment(s):
Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168
| EDELMAN J | [2012] WASC 168 (S) |
EDELMAN J:
(This judgment has been produced from the recording of the oral delivery
of reasons at the hearing.)1 On 29 May 2012 I delivered my reasons for decision. Orders were
delayed due to an application by the plaintiff for interest and costs to be awarded under the provisions of the guarantee contained in the Lease. Shortly before that issue was due to be heard the plaintiff abandoned that application.
The plaintiff now only seeks orders for (1) interest at 6% under s 32 of the Supreme Court Act 1935 (WA) and (2) an order that costs of the action be taxed on a party and party basis. There was some confusion in the communication from the plaintiff about to the date from which the cause of action arose and from which the interest should accrue.
3 At this hearing this afternoon the plaintiff explained that the date
from which interest was sought was 24 November 2010, which is the date at which default judgment against the second defendant was set aside. The plaintiff does not seek interest from the earlier date of 31 July 2009 which might arguably be the date when the cause of action arose due to the money falling due under cl 24.1 of the guarantee (see Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168 [131] - [132]).
The appropriate orders are therefore as follows:
1. The second defendant pay the plaintiff $71,990.10 together with simple interest under s 32 of the Supreme Court Act at 6% calculated from 24 November 2010; and
2. The second defendant pay the plaintiff's costs of the action to be taxed if not agreed.
5 The second defendant, Ms Elliott also now seeks leave to issue a
subpoena for all documents and items held by her former solicitors to be returned. Ms Elliott had previously sought leave to issue a subpoena for these documents but only after all the evidence in the trial had been concluded. Leave was refused then for the reasons I explained in my judgment.
6 The basis upon which it is now re-asserted that a subpoena should be
issued was said to be that it is very evident that had these documents been available there would have been a very different outcome to the case and
| EDELMAN J | [2012] WASC 168 (S) |
that the evidence would have placed a completely different complexion to the case. It was also said that the documents withheld by Ms Elliott's former solicitor had been discovered to the plaintiff.
Ms Elliott's renewed application for leave to issue a subpoena is
refused.
8 As I explained in my reasons for decision at [28] - [37], those
documents could not have added anything of material significance to the legal issues in the trial. There was no suggestion that witnesses in the trial should be recalled to give further evidence. The subpoena was sought simply to tender the additional documents as exhibits. But for the reasons I explained, not only were the additional documents immaterial to the case, but I also accepted the evidence of Ms Elliott that a further original of the Lease was in existence which contained a handwritten notation as she had described (at [31]).
9 Ms Elliott also now says that these documents had been discovered
to the plaintiff. It is not clear whether those documents, if discovered, were requested by Ms Elliott from the plaintiff. Counsel for the plaintiff did not mention to the court whether the documents were part of the discovery process, but, at the hearing of Ms Elliott's application for a subpoena after the conclusion of the trial, he explained that he could not see how the documents could 'advance matters any further' (ts 145).
10 Ms Elliott also submits that the absence of the documents did not
allow her due process in defending herself. Even apart from the lack of relevance of the documents to my decision I do not accept this submission.
11 At the time that Ms Elliott's solicitor withdrew his representation I
asked Ms Elliott whether she thought that she would be able to prepare for trial. I gave Ms Elliott a week to consider whether she was able to prepare her case despite the absence of the documents over which her former solicitor was exercising a lien. During that week, at my direction, the plaintiff provided Ms Elliott with his chronology and submissions.
12 At a directions hearing on 29 February 2012 I asked Ms Elliott
whether she considered that she was reasonably able to prepare for trial. She said that there was 'no reason why we can't proceed' (ts 24). She said that there might be a few items that she might request from Mr Graham. I explained to her on that occasion, as I had explained the previous week, and as I reiterated at the start of the trial, that if she intended to issue a subpoena for production of any documents by her former solicitor then
| EDELMAN J | [2012] WASC 168 (S) |
she should do so. As I explained in my reasons for decision, no
application for a subpoena was made until after the trial had concluded.13 If, as Ms Elliott asserts to be the case, her former solicitor is still
retaining documents for reasons which have 'nothing to do with the money [she owes to him] at all' then there may be legal questions to resolve between her and her former solicitor. But with the pronouncement of these orders, these proceedings are now concluded before me.
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