Ryan v Brown (also known as Justin Brown, John Adams, Heath Donaldson and Douglas Flemming)

[2003] WADC 260

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   RYAN -v- BROWN (also known as JUSTIN BROWN, JOHN ADAMS, HEATH DONALDSON AND DOUGLAS FLEMMING) [2003] WADC 260

CORAM:   REGISTRAR KINGSLEY

HEARD:   20 OCTOBER 2003

DELIVERED          :   26 NOVEMBER 2003

FILE NO/S:   CIV 992 of 2003

BETWEEN:   CATHARINA HARMINA RYAN

Plaintiff

AND

GLENN BROWN (also known as JUSTIN BROWN, JOHN ADAMS, HEATH DONALDSON AND DOUGLAS FLEMMING)
Defendant

Catchwords:

Practice - Leave to discontinue - Issue of costs

Legislation:

Rules of the Supreme Court 1971

Result:

Leave to discontinue granted
There be no order as to costs from 31 July 2003

Representation:

Counsel:

Plaintiff:     Mr S J Blyth

Defendant:     Mr J A Collins

Solicitors:

Plaintiff:     Lewis Blyth & Hooper

Defendant:     Lawton Gillon

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

Nil

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  This matter came before me in a directions hearing heard 20 October 2003.  By consent the plaintiff and defendant agreed the matter could be dealt with on the papers.

2. At the direction hearing the Courts directions summons was deemed a Summons pursuant to O 29, Rules of the Supreme Court of Western Australia 1971. The plaintiff's counsel then made an application that the action be discontinued with no order as to costs. The defendant's counsel opposes the application submitting the costs subsequent to the plaintiff's partially successful O 14, Rules of the Supreme Court application ought be the defendant's.

3. On 30 April 2003 the plaintiff brought an action for moneys owing under an agreement. By summons dated 20 May 2003 the plaintiff brought an application for summary judgment pursuant to O 14, Rules of the Supreme Court. Whilst the defendant had not made out a case to resist the plaintiff's application for judgment, Deputy Registrar Hewitt could find no basis entitling the plaintiff to the full amount sued upon.  Thus judgment for the plaintiff was limited, with the defendant being given unconditional leave to defend as to the balance.  The balance outstanding was within the jurisdiction of the Local Court.

4. The transcript subsequent to the Deputy Registrar's pronouncement of the judgment indicates that the plaintiff's counsel was contemplating not proceeding with the action.  On 11 August 2003, in response to a letter from the defendant's solicitor dated 5 August 2003, the plaintiff's solicitor wrote to the defendant's solicitor stating that the plaintiff was prepared to discontinue the District Court action provided the only costs applicable was the order made by Deputy Registrar Hewitt that the plaintiff have the costs of the action.

5. On 15 August 2003 the plaintiff's solicitor again wrote to the defendant's solicitor noting they had not received any response to the letter of 11 August 2003 and restating the plaintiff's offer to discontinue the District Court proceedings.  However on 14 August 2003 the defendant had filed a defence in the proceedings.

6. In my opinion it was clear at the hearing of the O 14, Rules of the Supreme Court application that the plaintiff would have great difficulty maintaining a claim for the balance of moneys.  This was recognised by the plaintiff in the letter of 11 August 2003 and at the hearing.

7. There is no evidence of any response by the defendant to the plaintiff's letter of 11 August 2003.  In my opinion the defence filed on 14 August 2003 was unnecessary.  The evidence shows that the plaintiff was not going to progress this action.

8. Accordingly in my opinion there ought be leave to discontinue the action and that the costs from 31 July to date ought be no orders as to costs. I have chosen 31 July 2003 as that is the day the Deputy Registrar gave his reason in the O 14 application.