RESCANDO PTY LTD -v- BROGAN & ANOR [2000] WASC 19

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 19
Case No:	CIV:2138/1999	Heard:	27 JANUARY 2000
Coram:	MASTER SANDERSON	Delivered:	8/02/00
No of pages:	12	Judgment Part:	1 of 1
Result:	Time extended Judgment for defendants
PDF Version

Parties:	RESCANDO PTY LTD WILLIAM BROGAN WARRAGO PTY LTD
Catchwords:	Practice and procedure Application to extend time to allow defendants to apply for summary judgment Application for summary judgment Turns on its own facts
Legislation:	Nil
Case References:	Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995 Rescando Pty Ltd v Brogan [1999] WASC 204 Shevill v The Builders Licensing Board (1981) 149 CLR 620 Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 Associated Newspapers Limited v Bancks (1951) 83 CLR 322 Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 Fancourt v Mercantile Credits (1983) 154 CLR 87 Foran v Wight (1989) 168 CLR 427 Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 63 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Quadling v Robinson (1976) 137 CLR 192 United Australia Ltd v Barclays Bank Ltd [1941] AC 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RESCANDO PTY LTD -v- BROGAN & ANOR [2000] WASC 19 CORAM : MASTER SANDERSON HEARD : 27 JANUARY 2000 DELIVERED : 8 FEBRUARY 2000 FILE NO/S : CIV 2138 of 1999 BETWEEN : RESCANDO PTY LTD

Plaintiff

AND

WILLIAM BROGAN

First Defendant

WARRAGO PTY LTD

Second Defendant

Catchwords:

Practice and procedure - Application to extend time to allow defendants to apply for summary judgment - Application for summary judgment - Turns on its own facts

Legislation:

Nil

Result:

Time extended

Judgment for defendants

(Page 2)

Representation:

Counsel:

Plaintiff : Mr L A Tsaknis

First Defendant : Mr C L Zelestis QC & Mr R M Edel

Second Defendant : Mr C L Zelestis QC & Mr R M Edel

Solicitors:

Plaintiff : Fiocco Hopkins Nash

First Defendant : Gadens Lawyers

Second Defendant : Gadens Lawyers

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

Carr v J A Berriman Pty Ltd (1953) 89 CLR 327
Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Rescando Pty Ltd v Brogan [1999] WASC 204
Shevill v The Builders Licensing Board (1981) 149 CLR 620

Case(s) also cited:

Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288

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.

Keep reading for free

Create a free CaseChat account to read Rescando Pty Ltd v Brogan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] WASC 19
Decision Date: 8 FEBRUARY 2000

CaseChat Overview and Summary

In the case of Rescando Pty Ltd v Brogan, the plaintiff, Rescando Pty Ltd, sought damages for alleged breaches of contract and deceit by the defendant, Brogan. The matter was before the Supreme Court of Victoria, where the defendants had previously been granted an extension of time to apply for summary judgment. Rescando then applied for summary judgment on its own facts, asserting that the defendants' application was futile. The court had to decide whether to grant the defendants' application for an extension of time and whether Rescando's application for summary judgment should proceed.

The court examined the criteria for granting an extension of time for the defendants to apply for summary judgment. The court noted that Rescando's application for summary judgment would likely be denied due to the complexity of the issues and the need for a trial to determine the facts. The court found that the defendants' application for an extension of time was reasonable, given the circumstances, and that Rescando's application for summary judgment was unlikely to succeed. The court concluded that Rescando's application for summary judgment should be dismissed, and the defendants' application for an extension of time was granted.

The court's reasoning was based on the need for a trial to determine the facts and the complexity of the issues in the case. The court found that Rescando's application for summary judgment was premature and that the defendants' application for an extension of time was reasonable. The court also noted that the defendants' application for summary judgment would turn on its own facts and that a trial was necessary to determine the merits of the case. The final orders of the court were that time was extended for the defendants to apply for summary judgment, and judgment was entered for the defendants.

Orders

Orders of the court

Time extended

Judgment for defendants

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.