Westwill Pty Ltd v Byrt

Westwill Pty Ltd brought a claim against Byrt, a firm of solicitors, for professional negligence. The case has seen extensive interlocutory disputes, with the most recent being the dismissal of the action for want of prosecution by the Master of the Supreme Court. The dismissal arose from the plaintiffs' failure to comply with an order to provide security for the defendants' costs, and the Master's refusal to reconsider that order. The plaintiffs appealed to the Supreme Court, which dismissed the appeal. The plaintiffs sought leave to appeal to the Full Court, but this was refused. The plaintiffs then appealed to the Court of Appeal, which has now dismissed their appeal. The appeal concerns the refusal of the Master to set aside or vary an order requiring the plaintiffs to provide security for the defendants' costs, and to dismiss the action for want of prosecution. The appeal also concerns the Master's refusal to reconsider that order on the basis of alleged "fresh evidence" which the plaintiffs' representative claimed had been withheld by the defendants.
The Court of Appeal found that the appeal was out of time, but the Court granted an extension of time in light of the appellant's recent health problems. The Court found that the Master was correct in his refusal to reconsider the order for security for costs, as the plaintiffs had not demonstrated that the evidence was fresh or that it had been withheld by the defendants. The Court also found that the Master was correct in dismissing the action for want of prosecution, as the plaintiffs had failed to comply with the order for security for costs, and had not even attempted to arrange security. The Court found that the Master had correctly applied the principles of finality in litigation, and that the plaintiffs had had ample opportunity to comply with the order for security for costs. The Court found that the plaintiffs had no valid grounds for appeal, and dismissed the appeal. The Court ordered the plaintiffs to pay the defendants' costs of the appeal.