Canberra Residential Developments Pty Limited v Brendas (No 4)

[2008] FCA 351

FEDERAL COURT OF AUSTRALIA

Canberra Residential Developments Pty Limited v Brendas (No 4) [2008] FCA 351

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

5 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:	5 MARCH 2008
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application made by the applicant ore tenus at 3.40pm on 5 March 2008 for an adjournment of the hearing until 16 June 2008 be dismissed.

2.The applicant pay the respondents’ costs in respect of the application.

3.The matter stand over for hearing at 9.30am on Thursday, 6 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:	5 MARCH 2008
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. An application was made at approximately 3.40 pm on Wednesday, 5 March 2008 for an order that the hearing be adjourned until 16 June 2008 to enable Mr Crowe SC to return to further participate in the matter and continue the cross-examination of Mr Brendas which he commenced but did not conclude on Friday 30 November 2007. 

2. On the afternoon of 4 March 2008 an application was made by the applicant for leave to cross-examine Mr Brendas by counsel other than Mr Crowe, notwithstanding the fact that Mr Brendas’ cross-examination by Mr Crowe was then incomplete.  That application was refused. 

3. The sole basis upon which the application for leave to cross-examine by other counsel was made was that the applicant had no funds, or more accurately, the applicant’s solicitors had no funds with which to pay senior counsel to appear.  This morning an application was made for leave to appeal from the judgment of 4 March 2008 on that application (Canberra Residential Developments Pty Limited v Brendas (No 2) [2008] FCA 255). That application was refused earlier this afternoon.

4. Evidence before the Court on 4 March 2008 was to the effect that a litigation funding company was unwilling to provide any further funds for security for costs.  I was asked to infer, and I think it reasonable to do so, that the litigation funding company was not prepared to provide any further funds for any other purpose.

5. The solicitor presently having the conduct of this matter in the applicant’s solicitor’s office gave evidence of a discussion with a representative of the litigation funding company in which she said words to the effect, ‘I am okay with not retaining Bob Crowe for the balance of the hearing’.  The so-called ‘beneficiaries of the litigation’ being 19 of the 51 members of a contemplated Horse Park 2 joint venture, made it known to the applicant’s solicitors, that they would not be providing further funds for the proceedings.  It was on that basis that the application was made for leave to cross-examine the one witness by two different counsel for the same party.

6. The application presently before the Court to adjourn the hearing until June to enable Mr Crowe to return to continue the cross-examination is premised on a willingness of somebody lying behind the applicant providing the necessary funds.  Mr Crowe had previously indicated to the applicant’s solicitors that he was not prepared to conduct the balance of the case on a speculative basis and he was not asked to do so.  It seems to me that it would be quite unjust to cause the respondents to have to return to this matter, yet again, in June were the application acceded to. 

7. There was no evidence to suggest that the 19 so-called ‘beneficiaries of the litigation’ were unable to provide any further moneys.  They simply chose not to do so.  Had they wished to have the benefit of further cross-examination of Mr Brendas, it was open to those ‘beneficiaries of the litigation’ to put the applicant’s solicitors in funds, at least sufficient to enable Mr Crowe to complete the cross-examination of Mr Brendas, which was due to resume yesterday at 10.15 am.  Plainly they chose not to do so and they did not take steps to secure Mr Crowe’s attendance this morning to continue with the cross-examination.  I accept that the statement from the bar table that Mr Crowe was unable to attend a further hearing until 16 June 2008 may well be inconsistent with any expectation that Mr Crowe would appear today but the die was cast some time ago when the applicant chose to proceed with its litigation knowing the consequences of having a change of counsel, in relation to a witness under cross-examination. 

8. In my opinion, the application for the hearing to be adjourned should be refused.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        17 March 2008

Counsel for the Applicant:	R Crowe SC (only on 26, 27, 28, 29 and 30 November 2007) and M Orlov
Solicitor for the Applicant:	Bradley Allen
Counsel for the First, Second and Third Respondents:	A S Martin SC and D J C Mossop
Solicitor for the First, Second and Third Respondents:	Gillespie-Jones & Co
Counsel for the fourth respondent:	B J Salmon QC
Solicitor for the fourth respondent:	J S O’Connor Harris & Co
Date of Hearing:	26, 27, 28, 29, 30 November 2007 and 4 and 5 March 2008
Date of Judgment:	5 March 2008