SANGORA HOLDINGS PTY LTD & ANOR -v- HODDER & ANOR [2002] WASC 206

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 206
Case No:	CIV:1097/1996	Heard:	16 JULY 2002
Coram:	ACTING MASTER CHAPMAN	Delivered:	27/08/02
No of pages:	15	Judgment Part:	1 of 1
Result:	Action dismissed
Category:	B
PDF Version

Parties:	SANGORA HOLDINGS PTY LTD (ACN 009 348 752) ACKHURST INVESTMENTS PTY LTD (ACN 009 349 801) JAMES HODDER GODFREY PEMBROKE LTD (formerly GODFREY WESTON LTD)
Catchwords:	Practice and procedure Dismissal of action for want of prosecution Principles to be applied Inordinate delay Prejudice to the defendant
Legislation:	Nil
Case References:	Bishopgate Insurance Australia Ltd (In liq) v Deloitte Haskins & Sells, unreported; SCt of Vic; No 4901 of 1989; 9 September 1994 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Duke v Royalstar Pty Ltd [2001] WASCA 273 Jakovljevic v L & B Doslov [2000] WASCA 131 Sangora Holdings Pty Ltd & Anor v Louis & Ors [2001] WASC 232 Birkett v James [1978] AC 297 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Brinkworth, unreported; FCt SCt of WA; Library No 990045; 10 February 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SANGORA HOLDINGS PTY LTD & ANOR -v- HODDER & ANOR [2002] WASC 206 CORAM : ACTING MASTER CHAPMAN HEARD : 16 JULY 2002 DELIVERED : 27 AUGUST 2002 FILE NO/S : CIV 1097 of 1996 BETWEEN : SANGORA HOLDINGS PTY LTD (ACN 009 348 752)

First Plaintiff

ACKHURST INVESTMENTS PTY LTD (ACN 009 349 801)

Second Plaintiff

AND

JAMES HODDER

First Defendant

GODFREY PEMBROKE LTD (formerly GODFREY WESTON LTD)

Second Defendant

Catchwords:

Practice and procedure - Dismissal of action for want of prosecution - Principles to be applied - Inordinate delay - Prejudice to the defendant

(Page 2)

Legislation:

Nil

Result:

Action dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr M J McCusker QC & Mr E M Corboy

Second Plaintiff : Mr M J McCusker QC & Mr E M Corboy

First Defendant : Mr C L Zelestis QC

Second Defendant : Mr C L Zelestis QC

Solicitors:

First Plaintiff : Lewis Blyth & Hooper

Second Plaintiff : Lewis Blyth & Hooper

First Defendant : Freehills

Second Defendant : Freehills

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

Bishopgate Insurance Australia Ltd (In liq) v Deloitte Haskins & Sells, unreported; SCt of Vic; No 4901 of 1989; 9 September 1994
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Duke v Royalstar Pty Ltd [2001] WASCA 273
Jakovljevic v L & B Doslov [2000] WASCA 131
Sangora Holdings Pty Ltd & Anor v Louis & Ors [2001] WASC 232

Case(s) also cited:

Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth of Australia v Brinkworth, unreported; FCt SCt of WA; Library No 990045; 10 February 1999

(Page 3)

ACTING MASTER CHAPMAN

The application

1 By way of chamber…

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] WASC 206
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Sangora Holdings Pty Ltd & Anor v Hodder & Anor was heard by Acting Master Chapman on 16 July 2002 and delivered on 27 August 2002. The defendants, James Hodder and Godfrey Pembroke Ltd (formerly Godfrey Weston Ltd), sought to have the plaintiffs' action dismissed for want of prosecution, citing inordinate delay and prejudice to the defendants. The plaintiffs, Sangora Holdings Pty Ltd and Ackhurst Investments Pty Ltd, alleged negligence in investment advice provided by the defendants, who were represented by solicitors from Freehills. The plaintiffs' case was for advice given in relation to investments in unlisted property trusts, which allegedly led to significant financial loss.

The court considered the principles of inordinate delay, explanation for the delay, hardship to the plaintiff if the action was dismissed, prejudice to the defendant if the action was allowed to proceed, and the conduct of the defendant in the litigation. The court found that the plaintiffs' explanation for the delay, which included the time taken to investigate and pursue related claims, was inadequate. The court also found that the defendants had suffered real prejudice due to the passage of time and the collapse of their insurance company, which would have responded to any damages awarded against them.

The court concluded that the delay was inordinate, the explanation for the delay was unsatisfactory, and the defendants had suffered real prejudice. Despite the plaintiffs' inability to maintain a fresh action due to the lapse of time, the court found it was not unjust to dismiss the action for want of prosecution. The court ordered the plaintiffs' action to be dismissed with costs to be determined.

Orders