Westwill Pty Ltd v Byrt - [2009] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WESTWILL PTY LTD & ORS v BYRT & ORS
[2009] SADC 95
Judgment of His Honour Judge Chivell
28 August 2009
PROCEDURE - COSTS - SECURITY FOR COSTS
Appeal from decision of Master dismissing action for want of prosecution - failure to comply with order to provide security for costs - whether original order should have been set aside or varied - whether fresh evidence produced - whether special circumstances existed. Appeal dismissed.
Rules of Court 1987; Corporations Law (SA) Act 1990, referred to.
Westwill Pty Ltd v Heath (1989) 52 SASR 461; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Wilshire-Smith v Leighton Hill Pty Ltd (No 2) unreported No. S 5176; Harpur v Ariadne Australia Ltd (1984) 2 Qd 523; Tiger AFC (Mayne) v AFL (2000) FCA 1650; Drumdurno v Braham (1982) 42 ALR 563; Dictating Machine Centre Pty Ltd v Combe (1981) 26 SASR 316; Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, considered.

WESTWILL PTY LTD & ORS v BYRT & ORS
[2009] SADC 95
Introduction

This is an appeal from the decision of Master Rice of this Court on 13 March 2009 in which he dismissed the within action for want of prosecution.
Strictly speaking, the appeal was out of time, but Mr Wellington, counsel for the defendants, did not oppose an extension of time being granted in view of Mr Jones’s recent health problems. Accordingly, to the extent necessary, I extend the time for bringing this appeal.
Background
This action was commenced in 2002. It involves a claim of professional negligence against the defendants, a firm of solicitors.
For the most part, the plaintiffs have not been legally represented. There has been a vast amount of interlocutory disputation in the action, as the bulky file demonstrates. For the purposes of this appeal, however, it is only necessary to record that:
·on 8 June 2007, the learned Master ordered that the plaintiffs provide security for the defendants’ costs up to the end of the first day of trial in the sum of $50,000;
·an appeal from that order was dismissed by Judge Smith of this Court on 22 August 2007;
·leave to appeal from Judge Smith’s decision was refused by Doyle CJ on 18 July 2008;
·the plaintiffs sought to appeal to the Full Supreme Court, but the appeal was eventually struck out by Kourakis J on 24 October 2008 (in chambers);
·the defendants applied on 28 October 2008 (FDN83) for dismissal of the action for want of prosecution because the plaintiffs have never complied with the order for security for costs. The plaintiffs’ representative, Mr Jones, informed the Master at the hearing of the application that the orders could not, and would not, be complied with. At the hearing of this appeal he told me the same thing;
·on 11 March 2009, two days before the hearing of that application, the plaintiffs filed…

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 Westwill Pty Ltd v Byrt

Details

AGLC: Westwill Pty Ltd v Byrt [2009] SADC 95
Case: [2009] SADC 95
Decision Date: 28 August 2009

CaseChat Overview and Summary

The appeal before the court was brought by Westwill Pty Ltd against Byrt, following a decision by a Master to dismiss the action for want of prosecution. The primary issue arose from Westwill's failure to comply with an order to provide security for costs, which ultimately led to the dismissal of the case. The appeal sought to challenge the dismissal, arguing that the original order should have been set aside or varied. Additionally, the appeal questioned whether fresh evidence was presented and whether special circumstances existed that warranted reconsideration of the Master's decision.

The court considered the legal principles surrounding security for costs and the circumstances in which such orders should be set aside or varied. The appeal hinged on whether the Master had erred in dismissing the action without considering the possibility of setting aside or varying the security for costs order. The court also examined the introduction of fresh evidence and the existence of special circumstances that could justify departing from the usual course of enforcing the security for costs order. Ultimately, the appeal court found that the Master had not erred in dismissing the action, and the appeal was dismissed.

The court reasoned that the Master had acted within their discretion in dismissing the action for want of prosecution due to the failure to provide security for costs. The evidence presented during the appeal did not establish any fresh evidence or special circumstances that would warrant a different outcome. The appeal court held that the dismissal was appropriate, and the decision of the Master was affirmed.

No further orders were made by the appeal court beyond affirming the Master's decision. The dismissal of the appeal meant that Westwill's action against Byrt was concluded, and the original dismissal for want of prosecution remained in effect.

Orders