Delarc Pty. Ltd. v Corporate Architecture Joinery Pty. Ltd.

[2001] NSWSC 83

CITATION:	Delarc Pty. Ltd. v. Corporate Architecture Joinery Pty. Ltd. & Ors. [2001] NSWSC 83
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1528/01
HEARING DATE(S):	23 February 2001
JUDGMENT DATE:	23 February 2001
PARTIES :	Delarc Pty. Limited - plaintiff Corporate Architecture Joinery Pty. Ltd. - 1st defendant Bradley Scott Whalan - 2nd defendnat Craig Anthony Whalan - 3rd defendant Maria Wha Ho - 4th defendant
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	Ms. Vukadinovic for plaintiff Mr. J. Johnson for defendants
SOLICITORS:	David Begg & Associates, Sydney for plaintiff Maxwell Berghouse & Ives, Smithfield for defendants
CATCHWORDS:	COURTS - PROCEDURE - COSTS - Transfer from Supreme Court to District Court - Vacation of hearing - Costs
DECISION:	See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Friday 23rd February 2001

NO. 1528 OF 2001
DELARC PTY. LIMITED V. CORPORATE ARCHITECTURE JOINERY PTY. LTD. & ORS.

JUDGMENT

1   I am dealing with an application to transfer proceedings from the District Court to this Court. The grant of that application would have the consequence that a hearing which has been set down before the District Court for 28th February 2001 will be vacated.

2   The ground of the application is essentially that relief is sought, in particular an account of profits, which is not within the jurisdiction of the District Court. The application is also supported on the basis that the matter would not, in any event, be ready for hearing in the District Court. The plaintiff says this is because the defendant has not provided the informal discovery which, according to the plaintiff, was agreed at the time when orders concerning production of documents were vacated, and the proceedings set down for hearing.

3   For the defendants, it is submitted that the pleading and particulars given by the plaintiff are grossly deficient, having regard to the allegations made against the defendants. The defendants say however that they would be ready to proceed next week, and that if any order is made vacating that hearing, and/or providing for transfer to the Supreme Court, the plaintiff should be ordered to pay all costs thrown away, that is, in effect, all costs to date.

4   The plaintiff commenced the proceedings in the District Court and now seeks to have them removed. I think a ground is shown for removal of the proceedings, and in my opinion, the plaintiff must be liable for any costs that necessarily resulted from the commencement of the proceedings in the District Court and their removal to the Supreme Court.

5   In relation to events that have taken place in the District Court and the vacation of the hearing date, I think the position is different. Whether or not the defendants’ complaints about inadequacy of pleading and particulars are justified, the effect is what appear to have been genuine attempts to give particulars were made by two letters, the second of which was sent in August last year, and on the evidence before me, no protest was made and no further particulars sought since then. Secondly, on the material before me, it does appear that the defendants have not acted reasonably in relation to the production of documents, thereby making it not reasonably possible for the plaintiff to proceed with the hearing next week.

6   On the whole, I think costs thrown away by reason of the vacation of the hearing date and other interlocutory matters in the District Court should be costs in the proceedings.

7   It will be necessary for there to be directions for the further progress of this matter, and I would ask the parties to try to reach agreement to those directions.

8   The plaintiff has foreshadowed an amendment to the Statement of Claim. If costs are thrown away by reason of that amendment, then the plaintiff will have to be liable for those costs, and to that extent, the provision I have made as to costs in the proceedings may be altered.

9   I make Order 1(a) in the Summons.

10   I direct the Registrar of this Court to notify the District Court forthwith of that order.

11   I order that costs necessarily thrown away by reason of the proceedings being commenced in the District Court and transferred to the Supreme Court be paid by the plaintiff.

12   I order that otherwise the costs involved in interlocutory steps in the District Court and the vacation of the hearing date be costs in the proceedings.

13   I direct that any proposed Amended Statement of Claim be served on or before 2nd March 2001.

14   I stand the matter over to 6th March 2001 before the Registrar.

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Last Modified: 02/27/2001