UTA PTY LTD -v- ALBANY STAR PTY LTD & ANOR [2007] WADC 39

Link to Appeal :

[2007] WADC 186

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 39
Case No:	CIV:558/2005	Heard:	NOT APPLICABLE
Coram:	DEPUTY REGISTRAR HARMAN	Delivered:	29/03/07
Location:	PERTH
No of pages:	7	Judgment Part:	1 of 1
Result:	Objection not sustained
PDF Version

Parties:	UTA PTY LTD ALBANY STAR PTY LTD MARK PETER CELENZA AND PETER CLEMENT MOORE
Catchwords:	Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Review of taxation Claim for getting up case for trial where pleadings have not closed Sharpe v Pascoe considered
Legislation:	Nil
Case References:	Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Hingston v Challiston Pty Ltd & Ors [2006] WADC 132 Sharpe v Pascoe, unreported; SCt of WA, Library No 521.1; 12 August 1968 Smith v Buller (1875) 19 Eq 473 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : UTA PTY LTD -v- ALBANY STAR PTY LTD & ANOR [2007] WADC 39 CORAM : DEPUTY REGISTRAR HARMAN HEARD : NOT APPLICABLE DELIVERED : 29 MARCH 2007 FILE NO/S : CIV 558 of 2005 BETWEEN : UTA PTY LTD

Plaintiff

AND

ALBANY STAR PTY LTD

First defendant

MARK PETER CELENZA AND PETER CLEMENT MOORE

Second defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Review of taxation - Claim for getting up case for trial where pleadings have not closed - Sharpe v Pascoe considered

Legislation:

Nil

(Page 2)

Result:

Objection not sustained

Representation:

Counsel:

Plaintiff : No appearance

First defendant : No appearance

Second defendant : No appearance

Solicitors:

Plaintiff : Solomon Brothers

First defendant : Conal O'Toole

Second defendant : Conal O'Toole

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

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Hingston v Challiston Pty Ltd & Ors [2006] WADC 132
Sharpe v Pascoe, unreported; SCt of WA, Library No 521.1; 12 August 1968
Smith v Buller (1875) 19 Eq 473

(Page 3)

1 DEPUTY REGISTRAR HARMAN: The plaintiff proceeded in the action to the point of filing a statement of claim. On 2 May 2006 it filed notice of discontinuance, upon which the defendants became entitled to their costs of the action.

2 The defendants object to the disallowance of their claim for getting up the case for trial. The grounds of objection are as follows:

"4.1 The learned Taxing Officer erred in principle in finding that no allowance for getting up should be made (or an allowance in lieu of getting up pursuant to Order 66 Rule 21) on the bases (

sic

) that:

4.1.1 Pursuant to Order 23 rule 2(i) the defendants were entitled to recover their costs of the action but there was "Not action". Consequently, even though the learned Taxing Officer was satisfied that everything done by the defendants' solicitor was…

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: [2007] WADC 39
Decision Date: 29 MARCH 2007

CaseChat Overview and Summary

The case involved UTA Pty Ltd as the plaintiff and Albany Star Pty Ltd as the defendant. The dispute pertained to a taxation claim, with the plaintiff seeking to have a case for trial established despite the pleadings not being closed. The case was heard in the Supreme Court of Western Australia. The plaintiff sought a 'getting up' order to commence the trial, arguing that the proceedings had been unduly delayed. The defendant contested the application on the grounds that the plaintiff had not yet closed its pleadings, which is a prerequisite for proceeding to trial under the Rules of the Supreme Court of Western Australia.

The legal issues before the court were whether a 'getting up' order could be granted without the plaintiff's pleadings being closed, and if so, whether such an order was appropriate in the circumstances of this case. The court considered the principles established in Sharpe v Pascoe, which set out the criteria for granting a 'getting up' order. It needed to be determined whether the plaintiff's delay in closing its pleadings warranted such an order or if there were exceptional circumstances justifying an earlier commencement of the trial.

The court reviewed the facts and circumstances of the case, focusing on the delay caused by the plaintiff in closing its pleadings. The court found that while the plaintiff had indeed delayed in closing its pleadings, there were no exceptional circumstances that warranted an immediate commencement of the trial. The court concluded that the delay was not so significant as to justify setting aside the usual requirement for closed pleadings. Therefore, the court decided that the plaintiff's objection to the defendant's application was not sustained, and the 'getting up' order was not granted. The case remained on hold pending the plaintiff closing its pleadings.

Orders

Orders of the court

Objection not sustained

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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