Brixton Nominees Pty Ltd v Hardiman - [2002] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BRIXTON NOMINEES PTY LTD & ORS -v- HARDIMAN & ORS [2002] WASC 3

CORAM: MASTER BREDMEYER

HEARD: 27 NOVEMBER & 10 DECEMBER 2001

DELIVERED : 18 JANUARY 2002

FILE NO/S: CIV 1828 of 1992

BETWEEN: BRIXTON NOMINEES PTY LTD
First Plaintiff
MAURICE HICKEY
MARGARET JOAN HICKEY
Second Plaintiffs
AND
ANTHONY PAUL HARDIMAN
ALISON JOY HARDIMAN
First Defendants
ERNST & WHINNEY (A FIRM)
Second Defendant

Catchwords:

Practice and procedure - Want of prosecution - Delay

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Second Plaintiffs           :     Mr J R Johnson
First Defendants           :     No appearance
Second Defendant         :     Mr S P Crabb

Solicitors:

Second Plaintiffs           :     Ilberys
First Defendants           :     No appearance
Second Defendant         :     Clayton Utz

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

Birkett v James [1978] App Cas 297
Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells (1999) 3 VR 863
Cooper v Hopgood & Ganim [1999] 2 Qd R 113
Department of Transport v Chris Smaller (Transport) Ltd [1989] AC 1197
Grovit v Doctor [1997] 1 WLR 640
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v Doslov [2000] WASCA 131
Levy & Anor v Stirling Brass Founders Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 970209; 9 May 1997
Stollznow v Calvert [1980] 2 NSWLR 749
Wan v Sweetman & Anor, unreported; FCt SCt of WA; Library No 960456; 14 August 1996

Case(s) also cited:

Berrigan v McIver [1974] VR 811
Biss v Lambeth, Southwark and Lewisham Area Health Authority [1978] 1 WLR 382
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bristow Helicopters Ltd v Global Marine Drilling Co, unreported; SCt of WA; Library No 3042.1; 6 October 1980
Casauria v De Kever, unreported; SCt of Vic (Hayne J); 21 November 1994
Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; 25 February 1998; Library No 980078
Hipworth v Dowell Australia Ltd, unreported; SCt of Vic (McGarvie J); 8 February 1989
Lewandowski v Lovell (1994) 11 WAR 124
Leyburd Nominees Pty Ltd v Coates Brown, unreported; CA SCt of Vic; 12 September 1995
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Norbis v Norbis (1986) 161 CLR 513
Sacco v Renault; unreported, SCt of Vic (O'Bryan J); 16 May 1994
Shtun v Zalejska [1996] 3 All ER 411
Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd (No 2) [1998] 2 QD R 551
Tyler v Custom Credit Corp Ltd [2000] QCA 178
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405

MASTER BREDMEYER: This is an application by the second defendants dated 27 September 2001 to dismiss the plaintiffs' action for want of prosecution. The application is supported by an affidavit of Mr Matthew Smith sworn 26 September 2001, an affidavit of Mr Scott Crabb sworn 14 November 2001 and an affidavit of Mr David Angus Murray sworn 21 November 2001. The application is opposed by an…

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] WASC 3
Decision Date

CaseChat Overview and Summary

The plaintiffs, Brixton Nominees and Mr and Mrs Hickey, brought an action against the first defendants, Mr and Mrs Hardiman, and the second defendants, Ernst & Whinney, a firm of accountants. The plaintiffs alleged that the second defendants offered negligent advice to the plaintiffs which resulted in the purchase of the Daroji Poster Gallery business. The plaintiffs sought damages for losses suffered as a result of the alleged negligence. The second defendants applied to have the action dismissed for want of prosecution. The second defendants submitted that the plaintiffs had been inordinately and inexcusably delayed in prosecuting the action, and that the delay had prejudiced the second defendants. The plaintiffs opposed the application. The court found that while there had been inordinate delay on the part of the plaintiffs, the case was ready for trial, and the plaintiffs had not acted contumeliously. The court held that it was not just to dismiss the action for want of prosecution. The court ordered that the case be programmed for a speedy trial.

Orders