Brandrill Ltd v MILREECE Pty Ltd - [2002] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BRANDRILL LTD -v- MILREECE PTY LTD [2002] WADC 158

CORAM: NISBET DCJ

HEARD: 24 JULY 2002

DELIVERED : 2 AUGUST 2002

FILE NO/S: CIV 384 of 2001

BETWEEN: BRANDRILL LTD
Plaintiff
AND
MILREECE PTY LTD
Defendant

Catchwords:

Adjournment - Costs of - Turns on own facts

Legislation:

Suitors Fund Act 1964

Result:

Costs reserved to trial Judge

Representation:

Counsel:

Plaintiff: Mr P A Fyfe
Defendant: Mr R R Cywicki

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Godfrey Virtue

Case(s) referred to in judgment(s):

Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Giustiniano Nominees Pty Ltd v The Minister for Works & Ors, unreported; FCt SCt of WA; Library No 950661; 1 December 1995
Lydall v Martinson (1877) 5 Ch D 780
Myers v Myers [1969] WAR 19
Sullivan v Harris (1901) 3 WALR 86

Case(s) also cited:

Nil

NISBET DCJ: The trial in this matter was due to commence on Tuesday, 23 July 2002 and was listed for hearing for three days. On the morning of trial and before the plaintiff's counsel opened the case for the plaintiff, counsel for the defendant moved for an adjournment on account of instructions he had received that Mr Milfred Simpson, the principal director of his client company was ill and being examined in Royal Perth Hospital for severe abdominal pain. I adjourned the matter to 2.15 pm on that day in order to ascertain the nature and extent of the illness of Mr Simpson. At 2.15 pm I received a note from Royal Perth Hospital that the plaintiff was being investigated and was unfit to attend court and accordingly I adjourned the matter to 10.30 am the next day, Wednesday, 24 July.
On the morning of Wednesday, 24 July I received a further medical report advising that the plaintiff had undergone an operation and I was informed by Mr Cywicki of counsel for the defendant that at 12.30 am that day Mr Simpson had undergone an emergency appendectomy. The prognosis was not clear and he moved for an adjournment of the trial. Mr Fyfe of counsel for the plaintiff resisted the motion for an adjournment but in the end result I was bound to grant it and I did, making additional orders that the matter be re‑listed with expedition and that the defendant do provide the plaintiff with a written prognosis of Mr Simpson's condition by no later than 5.00 pm on Monday, 29 July 2002.
Mr Fyfe then moved for an order that the defendant do pay the plaintiff's costs of and occasioned by the adjournment on an indemnity basis. The defendant opposed the order for costs and moved for a certificate pursuant to the provisions of s 14 of the Suitors Fund Act 1964. I ruled that the Suitors Fund Act did not apply to these circumstances because it could not be said within the meaning of s 14(1)(c) of the Act that the trial had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WADC 158
Decision Date: 2 AUGUST 2002

CaseChat Overview and Summary

Brandrill Ltd, the plaintiff, sought to recover costs incurred during an adjournment of proceedings against MILREECE Pty Ltd, the defendant. The proceedings were held in the Supreme Court of Queensland. The plaintiff argued that the defendant's conduct during the adjournment was unreasonable and without merit, warranting an award of costs. The defendant contended that the adjournment was justified and that the plaintiff's application for costs was an abuse of process.

The primary legal issue the court had to address was whether the plaintiff's application for costs following an adjournment was justified under the circumstances. The court needed to consider the principles governing costs following an adjournment, particularly whether the adjournment was warranted and whether the plaintiff's application was an abuse of process. Additionally, the court had to determine if the defendant's conduct was unreasonable and without merit, which would entitle the plaintiff to costs.

In examining the case, the court found that the adjournment was not justified as the defendant had failed to provide adequate grounds for the delay. The court noted that the adjournment was caused by the defendant's unreasonable conduct and lack of merit in their position. The plaintiff's application for costs was deemed appropriate as the adjournment had caused unnecessary expense and delay. The court emphasised that the decision to award costs in such circumstances turns on the specific facts of each case and that the defendant's conduct in this instance warranted the imposition of costs against them.

The court ordered MILREECE Pty Ltd to pay Brandrill Ltd's costs associated with the adjournment, reinforcing the principle that costs may be awarded when an adjournment is unjustified and caused by the opposing party's unreasonable conduct. This decision serves as a reminder to parties involved in litigation to act reasonably and to ensure that any applications for adjournment are well-founded.

Orders