Forbes Engineering (Asia) Pte Limited v Mark Forbes [2007] FCA 1598

FEDERAL COURT OF AUSTRALIA

Forbes Engineering (Asia) Pte Limited v Mark Forbes [2007] FCA 1598

PRACTICE AND PROCEDURE – application to vacate trial dates – recent summary dismissal application revealed that respondents misconstrued applicant's case – respondents now seek time to put on further evidence and file a second further amended defence – respondents' previous solicitor now required to appear as a witness – respondents engaged new solicitors one week ago – whether applicants prejudiced by adjournment application. COSTS – whether applicants are entitled to costs thrown away by virtue of the adjournment. HELD – Application granted. Trial dates vacated. Applicants entitled to costs thrown away by virtue of the adjournment. Federal Court Rules O 30 r 7. The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 applied Jarrett v Westpac Banking Corporation [1999] FCA 425 cited Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998) cited Business in Focus (Aust) Pty Ltd v Began Property Pty Ltd [2006] FCA 264 cited Menzies v CRCI Pty Ltd [2007] NSWCA 118 cited FORBES ENGINEERING (ASIA) PTE LIMITED AND FORBES ENGINEERING HOLDINGS (AUSTRALIA) PTY LIMITED v MARK FORBES AND KAREN LEE FORBES NSD 636 OF 2005

COLLIER J

18 OCTOBER 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD 636 OF 2005

BETWEEN: FORBES ENGINEERING (ASIA) PTE LIMITED

First Applicant

FORBES ENGINEERING HOLDINGS (AUSTRALIA) PTY LIMITED

Second Applicant

AND: MARK FORBES

First Respondent

KAREN LEE FORBES

Second Respondent

JUDGE: COLLIER J DATE OF ORDER: 18 OCTOBER 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The date for trial fixed by the Court be vacated in accordance with Order 30 rule 7 of the Federal Court Rules. 2. The Court dispense with the requirements of service of this Notice of Motion as set out in the Order 19 rule 3 in accordance with Order 19 rule 2 of the Federal Court Rules. 3. The respondents in the substantive proceedings pay the costs thrown away by the applicants in the substantive proceedings as a result of the order in paragraph 1, to be taxed if not otherwise agreed. 4. The costs of and incidental to this Notice of Motion incurred by the applicants in the substantive proceedings be paid by the respondents in the substantive proceedings, to be taxed if not otherwise agreed.