CATCHWORDS:
Civil Practice and Procedure - District Court - Case Management - Refusal to grant adjournment of hearing of liquidated claim - Whether matter should have been removed from running list and adjourned - Whether integrity and efficiency of list would have been prejudiced by adjournment - Where party that opposed adjournment would not have been prejudiced by adjournment in manner incapable of remedy by costs order - Where party that sought adjournment was prejudiced by its refusal - Where Amended Statement of Claim had raised new cause of action based on s 592 of the Corporations Law - Where first defendant was interstate and lost opportunity to prosecute defence - Where none of the parties were ready for trial . ND

LEGISLATION CITED:

DECISION:
See para 67

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40337/99
  DC   828/97
HEYDON JA
  HODGSON CJ in EQ
  DAVIES AJA
11 April, 2001

Dawn Kay SPENCER v VMD PACKAGING PTY LIMITED
JUDGMENT

HEYDON JA:
Background
This is an appeal against an order of Delaney DCJ made on 29 March 2000 refusing an application that the matter before him be removed from the running list and adjourned, and against an order of Delaney DCJ made on 20 April 2000 that there be judgment for the respondent against the appellants in the sum of $357,505 with costs.
On 5 August 1997 the respondent filed a Statement of Liquidated Claim. The defendants to it were the respondents, Howitt & Spencer Pty Ltd and Ian Kenneth Howitt. The respondents and Mr Howitt were described as directors of Howitt & Spencer Pty Ltd. The claim was for $201,032.50 “being work done and goods provided to carry on business as per 17 invoices and one credit note and dated between 20/5/92 and the 22/12/92 … totalling $200,505 plus the cost of legal searches totalling $527.50” (Orange 23C-G). Interest of $104,239.23 was also claimed.
It seems that a Defence was filed in November 1997.
At some stage leave was given to discontinue the proceedings against Ian Kenneth Howitt, who was an undischarged bankrupt.
28 April 1998 was the review date allocated to the matter. Some directions were made.
On 26 May 1998 there was another status conference. The matter was stood over to a status conference on 29 June 1998.
On 29 June 1998 the matter was stood over so that another party could be joined.
On 24 August…

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.

Continue reading Spencer v VMD Packaging Pty Limited

Details

AGLC: Spencer v VMD Packaging Pty Limited [2001] NSWCA 118
Case: [2001] NSWCA 118
Decision Date: 11 April 2001

CaseChat Overview and Summary

The District Court of Queensland considered an appeal concerning the refusal to grant an adjournment of a hearing for a liquidated claim. The appellant, the first defendant, sought the adjournment after an Amended Statement of Claim introduced a new cause of action based on section 592 of the Corporations Law. The first defendant argued that this amendment, filed shortly before the scheduled hearing, prejudiced its ability to prosecute its defence, particularly as it was an interstate party and had lost the opportunity to prepare.

The central legal issue before the Court was whether the District Court judge erred in refusing the adjournment. This required the Court to consider the principles of case management, specifically the balance between maintaining the integrity and efficiency of the court's running list and the need to ensure a fair trial for the parties. The Court had to assess whether the prejudice suffered by the first defendant due to the refusal of the adjournment was significant and whether the party opposing the adjournment would have been adequately compensated by a costs order.

The Court reasoned that the amendment to the Statement of Claim, introducing a new cause of action, fundamentally altered the nature of the proceedings and required significant preparation by the first defendant. It found that the refusal to grant an adjournment, in circumstances where none of the parties were ready for trial and the amendment had introduced a new legal basis for the claim, resulted in prejudice to the first defendant that could not be adequately remedied by costs alone. The Court emphasised that the efficiency of the court's list should not be maintained at the expense of a party's right to a fair hearing, especially when the opposing party would not have suffered irremediable prejudice.

The Court allowed the appeal, setting aside the orders made at the hearing and remitting the matter for a new hearing.

Orders

Orders of the court

See para 67

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

HODGSON CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HODGSON CJ

Full text does not contain this section.

Citations

AGLC Citation

Spencer v VMD Packaging Pty Limited [2001] NSWCA 118

Most Recent Citation

Official Trustee in Bankruptcy (Trustee of the bankrupt estate of George Stephen Greer) v Greer [2001] FCA 1604

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[2005] WADC 120

…Spencer v VMD Packaging Pty Ltd [2001] NSWCA 118…
Short v Crawley
[2004] NSWSC 752

…teman v Hansel Properties Ltd [1987] AC 189 Rosenberg v Percival (2001) 205 CLR 434 Short v Crawley [2003] NSWSC 1158 Spencer v VMD Packaging Pty Ltd [2001] NSWCA 118 The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 WAEJ v MIMIA (2003) 76 ALD 597 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSW…
Metropolitan Petar v Mitreski
[2004] NSWSC 439

…v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2004] NSWSC 122 Sarli v SPC Limited (1993) 67 ALJR 841 Spencer v VMD Packaging Pty Limited [2001] NSWCA 118 PARTIES : His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Fa…
Official Trustee in Bankruptcy (Trustee of the bankrupt estate of George Stephen Greer) v Greer
[2001] FCA 1604 Para 23

…Edition) , assuming those principles apply to proceedings which are effectively ex parte . I have noticed that in Spencer v VMD Packaging Pty Ltd [2001] NSWCA 118 Hodgson JA criticised the use of an unsworn expert’s report in District Court proceedings. His Honour said: “The report was unsworn and therefore was hea…

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Cases cited in this decision · 9 of 9 shown

Queensland v JL holdings Pty Ltd
[1997] HCA 1 Para 1

…to the respondent had the appellants’ adjournment application been granted, either at all or which could not have been overcome by a costs order: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154.8. 2. Having regard to the issues pleaded in paragraph 2 of the Notice of Appeal (Red AB53) which were raised before his Honour it mus…
Sali v SPC Ltd
[1993] HCA 47 Para 4

…mes have changed since 1884, and even since 1974’. They referred to a passage from the judgment of Toohey and Gaudron JJ in Sali v SPC Ltd [(1993) 67 ALJR 841 at 849; 116 ALR 625 at 636] where their Honours said: ‘The contemporary approach to court administration has introduced another element into the equation or, m…
Commonwealth v Verwayen
[1990] HCA 39 Para 4

…her element into the equation or, more accurately, has put another consideration onto the scales [See GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketteman v Hansel Properties Pty Ltd [1987] AC 189; The Commonwealth v Verwayen (1990) 1…
Bloch v Bloch
[1981] HCA 56 Para 6

…many occasions. [See, for example, Walker v Walker [1967] 1 WLR 3276, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 5, at 580-9]. Moreover the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which…
Squire v Rogers
[1979] FCA 85 Para 6

…laims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers [(1979) 27 ALR 330, at 337] this ‘may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of…
[1987] AC 189
[1987] AC 189 Para 4

…Gas Ltd (1990) 24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketteman v Hansel Properties Pty Ltd [1987] AC 189; The Commonwealth v Verwayen (1990) 170 CLR 394]. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court an…
The Commonwealth v Verwayen
79 ER 738 Para 4

…24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketteman v Hansel Properties Pty Ltd [1987] AC 189; The Commonwealth v Verwayen (1990) 170 CLR 394]. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in t…
[1928] 1 KB 645
[1928] 1 KB 645 Para 6

…to refuse an adjournment. Beazley JA referred to Sali v SPC Ltd (1993) 116 ALR 625. At 628-9 Brennan, Deane and McHugh JJ said: “In Maxwell v Keun [[1928] 1 KB 645, at 650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge…
[1967] 1 WLR 3276
[1967] 1 WLR 3276 Para 6

…That proposition has since become firmly established and has been applied by appellate courts on many occasions. [See, for example, Walker v Walker [1967] 1 WLR 3276, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 5, at 580-9]. Moreover the judgment of…

Legislation cited in this decision · 0

No legislation cited in this case.