Niya v Felav Pty Ltd - [2010] FMCA 125

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NIYA v FELAV PTY LTD

[2010] FMCA 125

PRACTICE AND PROCEDURE – Refusal of adjournment for the convenience of counsel one month before date fixed for hearing 2 months prior.

Haset Sali v SPC Ltd (1993) HCA 47, (1993) 116 ALR 625
Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123
Automotive, Food, Metals Engineering, Printing and Kindred Industries Union of Workers [2005] WASCA 157
Dordev v Cowan & Anor [2006] VSCA 254
R v Ngo [2001] NSWSC 887

Applicant:

MOHAMMED TAGHI FATEMI NIYA

Respondent:

FELAV PTY LTD T/AS M & P & M NANOVICH ACN 009 297 527

File Number:

PEG 208 of 2009

Judgment of:

Raphael FM

Hearing date:

17 February 2010

Date of Last Submission:

17 February 2010

Delivered at:

Sydney

Delivered on:

17 February 2010

REPRESENTATION

Solicitors for the Applicant:

Downings Legal

Solicitors for the Respondent:

Paiker and Overmeire

ORDERS

Application for adjournment dismissed.
Respondent’s time for filing affidavits extended until 1 March 2010.
Applicant to pay the respondent’s costs assessed in the sum of $300.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PEG 208 of 2009

MOHAMMED TAGHI FATEMI NIYA

Applicant

And

FELAV PTY LTD T/AS M & P & M NANOVICH
ACN 009 297 527

Respondent

REASONS FOR JUDGMENT

On 15 December 2009 this case was set down for a special fixture to be heard on 15 March and 16 March 2010. At the time the case was set down the parties were given a timetable for the filing of evidence and the completion of other interlocutory matters. It was not suggested at that time that the date would be inconvenient to anybody or that the necessary filing of evidence could not be undertaken. The hearing is to be conducted in Perth by myself, a Federal Magistrate from Sydney, because the Federal Magistrate based in Perth has a conflict in relation to the case and has rightly excused himself from it.
On or about 15 February 2010 the court received a fax from the applicant’s solicitors confirming a telephone conversation that had taken place on 11 February advising that the applicant’s solicitors wished to vacate the hearing date on the grounds of the unavailability of counsel. I arranged for a special directions hearing to take place on 17 February.
I have no evidence as to why counsel is unavailable other than what has been told to me by Ms Pereira, a solicitor, from the bar table. No explanation has been given as to whether or not that date was inconvenient on 8 December, or whether the inconvenience is a recent one. Apparently, she says, counsel has other cases on that day.
Adjourning cases that have been set down for a fixed date should only be done where the court has been persuaded that there are proper reasons for so doing. The unavailability of counsel for unexplained reasons is not one of those reasons. In Haset Sali v SPC Ltd (1993) HCA…

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: [2010] FMCA 125
Decision Date: 17 February 2010

CaseChat Overview and Summary

Niya brought an action against Felav Pty Ltd in the Federal Circuit Court of Australia, seeking damages for various breaches of contract and associated claims. The plaintiff alleged that the defendant, a company engaged in property management, had failed to adhere to contractual obligations including timely payment of rent, maintenance of the property, and proper accounting of expenses. Niya claimed these breaches had caused significant financial and reputational damage.

The court was required to address two primary issues: whether the application for an adjournment was justified, and if the time for filing affidavits should be extended. The court also needed to determine the appropriate costs to be awarded in light of the application. The plaintiff argued that the adjournment was necessary due to delays in obtaining relevant documents, while the defendant contended that the application was an attempt to gain an unfair advantage and was thus unjustifiable.

In dismissing the application for adjournment, the court found that the plaintiff had not demonstrated sufficient grounds for the delay. The court noted that the plaintiff had ample time to organise and secure the necessary documents, and the lack of preparation did not warrant an extension. The court also emphasised the importance of adhering to procedural timelines. Consequently, the plaintiff was ordered to pay the defendant's costs, reflecting the court's view that the application was without merit. Furthermore, the court granted the defendant's request to extend the time for filing affidavits until 1 March 2010, to ensure a fair and comprehensive examination of the case.

Orders

Orders of the court

Application for adjournment dismissed.

Respondent’s time for filing affidavits extended until 1 March 2010.

Applicant to pay the respondent’s costs assessed in the sum of $300.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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