Australian Super Developments Pty Ltd v David Wellesley Marriner (No. 2)

The parties in this case were Australian Super Developments Pty Ltd, the plaintiff, and David Wellesley Marriner, the first defendant. The dispute concerned the plaintiff's application for leave to file a summons and further material after the delivery of reasons for judgment on a remitter hearing. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to reopen the matter, arguing that exceptional circumstances justified the application.

The primary legal issues for the court to decide were whether the plaintiff had established 'exceptional circumstances' to warrant reopening the case, and if re-opening the case would promote the overarching purpose of justice. The court also considered the principle against double recovery and the implications of the plaintiff's settlement with the solicitor, as well as the appropriate treatment of the offer of compromise in relation to a Calderbank offer.

The court held that the plaintiff had not demonstrated exceptional circumstances that warranted reopening the case. It was found that considerations of the justice of the case did not favour the grant of leave to re-open, and that reopening the case would not promote the overarching purpose of justice. The court emphasised that the principle against double recovery meant that the plaintiff's settlement with the solicitor did not preclude separate claims and causes of action against the first defendant. Additionally, the court ruled that the offer of compromise made by the plaintiff should be treated as an effective Calderbank offer, leading to an indemnity costs order against the plaintiff.

The court made an order that the plaintiff's application for leave to re-open the case was dismissed, and that the plaintiff pay the first defendant's costs of the original trial and the remitter hearing, including indemnity costs.