Davmond Holdings Pty Ltd v Zaynah Pty Ltd - [2017] WASC 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DAVMOND HOLDINGS PTY LTD -v- ZAYNAH PTY LTD [2017] WASC 201

CORAM: MARTINO J

HEARD: 21 JULY 2017

DELIVERED : 21 JULY 2017

PUBLISHED : 28 JULY 2017

FILE NO/S: CIV 3033 of 2010

BETWEEN: DAVMOND HOLDINGS PTY LTD
Plaintiff
AND
ZAYNAH PTY LTD
First Defendant
CASHERE PTY LTD
Second Defendant
TIM REITER
Third Defendant
SELISE PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application to adjourn trial

Legislation:

Nil

Result:

Trial adjourned

Category: B

Representation:

Counsel:

Plaintiff:     Mr L A Tsaknis
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     In person
Fourth Defendant           :     No appearance

Solicitors:

Plaintiff:     George Papamihail Barristers & Solicitors
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     In person
Fourth Defendant           :     No appearance

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

Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

MARTINO J: This action was listed for trial for three days commencing Monday, 24 July 2017. By an application filed on 19 July 2017 the third defendant, Mr Reiter, applied for the adjournment of the trial. As he resides in Victoria I allowed him to appear on the hearing of this application by telephone. On the hearing of the application I decided to grant the adjournment application and to relist the trial on 26 September 2017. I gave brief reasons for my decision and said that I would publish more detailed reasons. These are those reasons.
The plaintiff claims that as a result of untrue representations concerning the supply and installation of Automatic Teller Machines made by the first defendant and Mr Reiter the plaintiff paid $445,000 to the first defendant. The plaintiff claims against the first defendant and Mr Reiter a declaration that they hold the sum of $445,000 on trust for the plaintiff and an order for payment of that sum and interest. The plaintiff claims against the second defendant rescission of a rectified contract. The plaintiff claims against the second defendant and Mr Reiter a declaration that a contract is void and of no effect, restitution of any monies paid to Mr Reiter pursuant to the void contract, rescission of the contract and damages. The plaintiff claims against the fourth defendant a declaration that a contract is void and of no effect and restitution of any monies paid to the fourth defendant pursuant to the void contract. The plaintiff claims against the second defendant and the fourth defendant rectification of a contract to give effect to a verbal agreement.
None of the defendants have solicitors acting for them.
On 6 July 2017 the plaintiff's solicitors filed a proposed amended statement of claim. In that document the plaintiffs seek to plead an additional untrue representation and to delete paragraphs of the statement of claim pleading rectification and breach of contract.
On 19 July 2017 the plaintiff filed an outline of submissions…

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.

Continue reading Davmond Holdings Pty Ltd v Zaynah Pty Ltd

Details

AGLC: Davmond Holdings Pty Ltd v Zaynah Pty Ltd [2017] WASC 201
Case: [2017] WASC 201
Decision Date: 28 JULY 2017

CaseChat Overview and Summary

The proceedings before the Federal Court involved Davmond Holdings Pty Ltd, the plaintiff, and Zaynah Pty Ltd, the defendant. The plaintiff sought damages for alleged breaches of contract and misrepresentation by the defendant. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the trial should be adjourned at the request of the defendant. The defendant argued that an adjournment was necessary due to the plaintiff's failure to provide certain documents and the defendant's need for additional time to prepare its defence. The court had to determine whether the circumstances justified an adjournment and, if so, whether the application was made in good time.

The court considered the principles of fairness and the importance of ensuring that cases are decided efficiently and effectively. It examined whether the plaintiff's failure to provide documents was a result of negligence or some other factor that might warrant an adjournment. The court also took into account the defendant's need for adequate time to prepare its defence, considering the complexity of the case and the nature of the allegations. The court concluded that while the plaintiff's failure to provide documents was not excusable, the circumstances did warrant an adjournment to allow the defendant to properly prepare its defence.

Ultimately, the court granted the application for an adjournment. It found that the defendant's need for additional time to prepare its defence outweighed the plaintiff's inconvenience, and that fairness and the efficient administration of justice required the adjournment. The court ordered that the trial be adjourned to a date to be determined, providing both parties with sufficient time to prepare for the next hearing. This decision ensures that the defendant has the opportunity to adequately defend itself against the plaintiff's claims, while also maintaining the integrity and efficiency of the judicial process.

Orders