Deangrove Pty Ltd v Commonwealth Bank of Australia [2002] FCA 1352

Deangrove Pty Ltd v Commonwealth Bank of Australia [2002] FCA 1352

The Court granted the motion to vacate the hearing dates because requiring the applicants to proceed in December would prejudice their case due to defects in preparation, there was still a month before the hearing, a new hearing could be set in late March 2003 without substantial further delay, and any irrecoverable costs to the respondent were unlikely to be substantial. The uncontested variation extending the date for payment of the indemnity was also made, but the applicants were ordered to pay the respondent's costs of the motion and costs thrown away on an indemnity basis.

Jurisdiction
Australia
Judgment Date
01 November 2002
Procedural Posture
Motion to Vacate Hearing Dates and Vary an Order for Payment of an Indemnity / Interlocutory Application Before Scheduled Hearing
Outcome
Applicants' motion granted; hearing dates vacated; indemnity payment date extended; applicants ordered to pay indemnity costs.
Legal Topics
['adjournment or Vacation of Hearing Dates' 'case Management' 'indemnity Costs' 'funding of Litigation' 'variation of Procedural Orders']
['civil Procedure' 'costs'] ['adjournment or Vacation of Hearing Dates' 'case Management' 'indemnity Costs' 'funding of Litigation' 'variation of Procedural Orders']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Motion to Vacate Hearing Dates and Vary an Order for Payment of an Indemnity / Interlocutory Application Before Scheduled Hearing

Legal Issues

  1. 1 ["Whether the hearing dates commencing on 3 December 2002 should be vacated because the applicants' case was not ready for hearing." 'Whether the order requiring payment of an indemnity should be varied to extend the date for payment.' "What costs orders should be made on the applicants' motion and for costs thrown away by vacating the hearing dates."]

Ratio Decidendi

The Court granted the motion to vacate the hearing dates because requiring the applicants to proceed in December would prejudice their case due to defects in preparation, there was still a month before the hearing, a new hearing could be set in late March 2003 without substantial further delay, and any irrecoverable costs to the respondent were unlikely to be substantial. The uncontested variation extending the date for payment of the indemnity was also made, but the applicants were ordered to pay the respondent's costs of the motion and costs thrown away on an indemnity basis.

Court Disposition

Applicants' motion granted; hearing dates vacated; indemnity payment date extended; applicants ordered to pay indemnity costs.

Orders

  • ['The hearing dates of 3 to 13 December 2002 be vacated.' 'Order 1 made on 1 October 2002 be varied by deleting 7 November 2002 and substituting 16 November 2002 therefor.' "The applicants pay the respondent's costs of this motion, on an indemnity basis." "The applicants pay the respondent's costs thrown away by the...