Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215

FEDERAL COURT OF AUSTRALIA

Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company (No 2) [2011] FCA 1215 Citation: Transpacific Pty Ltd v Prudential Retirement Insurance and Annuity Company No 2 [2011] FCA 1215

Parties: TRANSPACIFIC PTY LTD ACN 073 644 612 v PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY, DAVID JOHN WINTERBOTTOM and DAVID PAUL MERRYWEATHER

File number: NSD 120 of 2011

Judge: STONE J

Date of judgment: 26 October 2011

Catchwords: PRACTICE AND PROCEDURE – application to vacate hearing date filed five days before commencement of hearing – applicant's case not ready for trial – applicant yet to obtain expert evidence on issue of New York law in substantive proceeding – delays in filing evidence despite extensions of time – change of solicitor – consideration of respective prejudice to parties – applicant unable to make its case if hearing not adjourned – order for costs without more would not remedy prejudice to respondents if application allowed – consideration of principles relevant to exercise of Court's discretion – objectives in s 37M Federal Court of Australia Act expressed at high level of generality – each case to be decided on its unique facts – in the circumstances, vacating the hearing and dissolving the injunction restraining the first respondent from dealing with the aircraft, coupled with indemnity costs and strict orders for preparation of hearing a fair resolution COSTS – indemnity costs – application for applicant to pay respondents' costs thrown away by vacation of hearing date on indemnity basis – Court has pre-eminent discretion – in the circumstances, such costs not unreasonable