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

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.
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.
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.
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…

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 351
Decision Date: 5 March 2008

CaseChat Overview and Summary

Canberra Residential Developments Pty Limited brought an application against Brendas for an adjournment of a hearing which was initially set for 5 March 2008. The respondents opposed the application on the basis of the applicant’s delay in making the application and the lack of evidence of any good reason for the delay. The matter was heard by the Supreme Court of the Australian Capital Territory.

The court was required to determine whether the applicant's delay in making the application for an adjournment was unreasonable and whether there was a good reason for the delay. The court also considered whether the delay caused any prejudice to the respondents.

The court found that the applicant's delay in making the application was unreasonable and that there was no good reason for the delay. The court held that the delay caused prejudice to the respondents as they would have to prepare for the hearing on a shorter notice than they would have otherwise. The court dismissed the application and ordered that the applicant pay the respondents' costs in respect of the application. The matter was rescheduled for hearing on 6 March 2008.

The court ordered that the application for an adjournment be dismissed and that the applicant pay the respondents’ costs. The matter was rescheduled for hearing on 6 March 2008.

Orders

Orders of the court

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.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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:	5 MARCH 2008
WHERE MADE:	CANBERRA

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

JUDGE:	GRAHAM J
DATE:	5 MARCH 2008
PLACE:	CANBERRA