Heggies Bulkhaul v Global Minerals - [2002] NSWSC 410

CITATION: Heggies Bulkhaul v Global Minerals [2002] NSWSC 410

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2810/01

HEARING DATE(S): 6 May 2002

JUDGMENT DATE: 10 May 2002

PARTIES :

Heggies Bulkhaul Ltd (P)
Global Minerals Australia Pty Ltd (D)

JUDGMENT OF: Austin J

COUNSEL : Mr J Smith (P)
Mr M Ashhurst (D)

SOLICITORS: PricewaterhouseCoopers Legal (P)
M D Nikolaidis & Co (D)

CATCHWORDS: PRACTICE AND PROCEDURE - application for vacation of hearing dates - plaintiff knowingly provides deficient information in response to Court order - defendant prepares case relying on that information - plaintiff admits to inaccuracy just before hearing COSTS - indemnity costs - grounds

CASES CITED: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
McCarthy v McIntyre (Federal Court of Australia (Beaumont J), 6 November 1997, unreported)
Oshlack v Richmond River Council (1998) 193 CLR 72
Robinson v Aware Industries Ltd (Federal Court of Australia (Weinberg J), 1 October 1998, unreported)
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682

DECISION: Hearing dates vacated; orders to be made for Court-appointed expert to enquire and report on royalties due; plaintiff to pay defendant's indemnity costs of application

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 10 MAY 2002

2810/01 HEGGIES BULKHAUL LTD V GLOBAL MINERALS AUSTRALIA PTY LTD

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff seeks specific performance of an alleged agreement for a long-term lease of a quarry. By its cross-claim the defendant alleges that the plaintiff is in breach of terms of the tenancy under which it occupies the quarry. The breaches include failure to pay all of the royalties due under the tenancy, failure to restore and rehabilitate the land after mining, the carrying out of unauthorised mining works, and failure to provide the defendant with notices, consents and the like. The plaintiff contends that there are no such breaches, but that if the tenancy has been breached, it is entitled to relief against forfeiture. It also makes a money claim.

2 On the application of the plaintiff, the case was set down for expedited hearing on 10 December 2001. The facts proved to be complex and the hearing was not completed on those days. The case was adjourned, part heard, to 22 April 2002.

3 On 22 April 2002, when the hearing resumed, the defendant moved by notice of motion for the further hearing dates to be vacated, and for leave to reopen its case after an adjournment that would give it sufficient time to conduct a proper audit of weighbridge dockets and invoices to ascertain whether royalties paid to it had been correctly calculated. The defendant claimed to have discovered, in the days before the hearing resumed, that information as to the basis for the calculation of royalties, supplied to it by the plaintiff in October 2001 pursuant to an order of the Court and marked as exhibit LFH 1, was inaccurate in significant ways.

4 I decided that, although the application was…

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] NSWSC 410
Decision Date: 10 May 2002

CaseChat Overview and Summary

In the case of Heggies Bulkhaul v Global Minerals, the plaintiff, Heggies Bulkhaul, sought an application to vacate previously set hearing dates due to allegedly deficient information provided in response to a court order. The defendant, Global Minerals, opposed the application, arguing that Heggies Bulkhaul had knowingly provided inaccurate information, which had led to the defendant's preparation of its case accordingly. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether Heggies Bulkhaul's application to vacate the hearing dates should be granted, and if so, whether indemnity costs should be awarded to Global Minerals. The court needed to determine the appropriate remedy in light of Heggies Bulkhaul's failure to provide accurate information as ordered by the court. The court considered the principles of procedural fairness, the impact of the inaccurate information on the defendant's case preparation, and the general rule that indemnity costs may be awarded in cases of vexatious conduct.

The court found that Heggies Bulkhaul's application to vacate the hearing dates should not be granted as it would unfairly prejudice Global Minerals, who had already prepared their case based on the provided information. The court emphasised that parties must comply with court orders, particularly when it involves the provision of information essential to the other party's case preparation. The court also found that Heggies Bulkhaul's conduct warranted the award of indemnity costs to Global Minerals, as it had acted vexatiously by knowingly providing inaccurate information. The court concluded that the appropriate remedy was to award indemnity costs to Global Minerals, reflecting the unnecessary expenditure incurred by the defendant due to Heggies Bulkhaul's actions.

The final orders of the court were that the application to vacate the hearing dates was dismissed and that Heggies Bulkhaul pay Global Minerals' costs of the application on an indemnity basis.

Orders