Tomanovic Multiown Pty Limited v Interlux Projects Pty Limited [2020] NSWSC 48

Tomanovic Multiown Pty Limited v Interlux Projects Pty Limited [2020] NSWSC 48

The hearing date had to be vacated because the factual issues, multiple witnesses, divergent defendant interests and the presence of an unrepresented party made a one-day trial unrealistic. The plaintiff was not entitled to a special costs order for costs thrown away because the late retainer of lawyers was not accepted as the cause of the inadequate estimate and the plaintiff's representatives also failed to raise concerns about their own estimate in time. The second and third defendants were allowed to amend because the Contracts Review Act defence was not shown to be futile or hopeless and the inevitable adjournment meant any additional prejudice or lengthening of the trial would not...

Jurisdiction
Australia
Judgment Date
06 February 2020
Procedural Posture
Procedural and Other Rulings in Equity Proceedings Concerning Recovery of Amounts Allegedly Due Under a 2011 Loan / Trial Listed for Hearing; Applications Concerning Vacation of Hearing Date, Costs Thrown Away, and Amendment of Defences
Outcome
Hearing date vacated; plaintiff's application for costs thrown away by vacation dismissed; second and third defendants granted leave to amend their defences on costs conditions.
Legal Topics
['adjournment' 'inadequate Hearing Time Estimates' 'costs Thrown Away' 'late Retention of Solicitors and Counsel' 'pleadings Amendment' 'contracts Review Act Relief']
['civil Procedure' 'equity' 'contracts'] ['adjournment' 'inadequate Hearing Time Estimates' 'costs Thrown Away' 'late Retention of Solicitors and Counsel' 'pleadings Amendment' 'contracts Review Act Relief']

Case Brief

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Procedural Posture

Procedural and Other Rulings in Equity Proceedings Concerning Recovery of Amounts Allegedly Due Under a 2011 Loan / Trial Listed for Hearing; Applications Concerning Vacation of Hearing Date, Costs Thrown Away, and Amendment of Defences

Legal Issues

  1. 1 ['Whether the hearing fixed for 6 February 2020 should be vacated because the one-day estimate was inadequate.' "Whether the first, second and third defendants should pay the plaintiff's costs thrown away by reason of the vacation of the hearing date." 'Whether the second and third defendants should be granted leave to amend their defences to rely on the Contracts Review Act 1980 (NSW).']

Ratio Decidendi

The hearing date had to be vacated because the factual issues, multiple witnesses, divergent defendant interests and the presence of an unrepresented party made a one-day trial unrealistic. The plaintiff was not entitled to a special costs order for costs thrown away because the late retainer of lawyers was not accepted as the cause of the inadequate estimate and the plaintiff's representatives also failed to raise concerns about their own estimate in time. The second and third defendants were allowed to amend because the Contracts Review Act defence was not shown to be futile or hopeless and the inevitable adjournment meant any additional prejudice or lengthening of the trial would not...

Court Disposition

Hearing date vacated; plaintiff's application for costs thrown away by vacation dismissed; second and third defendants granted leave to amend their defences on costs conditions.

Orders

  • ['Order that the hearing fixed for 6 February 2020 be vacated.' "Order that the plaintiff's application for an order that the first, second and third defendants pay the costs thrown away by reason of the vacation of the hearing date be dismissed." 'Grant leave to the second and third defendants to amend their...