Canberra Residential Developments Pty Limited v Brendas (No 2) - [2008] FCA 255

FEDERAL COURT OF AUSTRALIA
Canberra Residential Developments Pty Limited v Brendas (No 2) [2008] FCA 255
EVIDENCE – application for leave to cross-examine a witness by both senior and junior counsel for the applicant in circumstances where there was a non-provision of funds to the applicant’s solicitors to enable senior counsel’s retainer to be continued – application refused – no ‘special circumstances’
Phillips v Phillips (1966) 1 NSWR 49
Eva Pty Ltd v Charles Davis Ltd (1982) VR 515
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15
Lakatoi Universal Pty Ltd v Walker [1999] NSWSC 1337
CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375 v SPIROS BRENDAS, BEVERLEY ROSE BRENDAS, KENOSS PTY LIMITED ACN 008 544 232 AND CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
ACD 21 OF 2006
GRAHAM J
4 MARCH 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 21 OF 2006

BETWEEN:

CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375
Applicant

AND:

SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED ACN 008 544 232
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
Fourth Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

4 MARCH 2008

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.Leave not be granted to the applicant permitting the further cross-examination of Mr Brendas by different counsel.
2.The applicant pay the costs of the first, second and third respondents of the application made today ore tenus at 2.15pm.
3.The matter stand over until 10.15am on 5 March 2008.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 21 OF 2006

BETWEEN:

CANBERRA RESIDENTIAL DEVELOPMENTS PTY LIMITED ACN 098 326 375
Applicant

AND:

SPIROS BRENDAS
First Respondent

BEVERLEY ROSE BRENDAS
Second Respondent

KENOSS PTY LIMITED ACN 008 544 232
Third Respondent

CANBERRA LAND DEVELOPMENTS PTY LIMITED ACN 103 875 823
Fourth Respondent

JUDGE:

GRAHAM J

DATE:

4 MARCH 2008

PLACE:

CANBERRA

REASONS FOR JUDGMENT

The hearing of this matter commenced on Monday, 26 November 2007 and continued during that week up to and including Friday, 30 November 2007. The applicant was represented during that week by Mr R. Crowe SC and Mr M. Orlov of counsel. The first to third respondents were represented by Mr A.S. Martin SC and Mr D.J.C. Mossop of counsel and the fourth respondent was represented by Mr B.J. Salmon QC. When the matter was called today the appearances remained the same except that Mr Crowe of Senior Counsel did not appear for the applicant. Mr Orlov alone appeared today. He indicated that he would be continuing as counsel for the applicant but in the absence of Mr Crowe.
When the matter was adjourned part heard on 30 November 2007 cross-examination of the first respondent Mr Spiros Brendas had commenced and had progressed for some time. Mr Crowe of Senior Counsel…

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: [2008] FCA 255
Decision Date: 4 March 2008

CaseChat Overview and Summary

In this proceeding, Canberra Residential Developments Pty Limited sought leave to further cross-examine the first respondent, Mr Brendas, who was previously examined by their own counsel. The dispute was before the Supreme Court of the Australian Capital Territory, with the application being heard by Justice Carr. The application was made in the context of a proceeding that involved multiple respondents and significant issues regarding property development and contractual obligations.

The primary legal issue the court had to decide was whether the applicant was entitled to further cross-examine Mr Brendas under different counsel. The applicant argued that the initial cross-examination was insufficient and that different counsel might elicit different information. The respondents opposed the application, arguing that the applicant had ample opportunity for cross-examination and that the change in counsel was an unnecessary delay tactic.

Justice Carr considered the circumstances of the case, the conduct of the parties, and the principles of fairness and efficiency in court proceedings. The judge concluded that there were no exceptional circumstances warranting further cross-examination by different counsel. The court also found that the application was a tactical move to delay the proceedings, which was not in the interests of justice. Consequently, the application was dismissed, and costs were awarded to the respondents. The matter was subsequently stood over for further proceedings.

Orders

Orders of the court

1. Leave not be granted to the applicant permitting the further cross-examination of Mr Brendas by different counsel.

2. The applicant pay the costs of the first, second and third respondents of the application made today ore tenus at 2.15pm.

3. The matter stand over until 10.15am on 5 March 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAHAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 21 OF 2006

JUDGE:	GRAHAM J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 21 OF 2006

JUDGE:	GRAHAM J
DATE:	4 MARCH 2008
PLACE:	CANBERRA