RANDHAWA -v- RANDHAWA [2025] WASC 357 (28 August 2025)

1. Surinder Randhawa and Mohindar Randhawa are sister and brother.
2. By way of a high level summary, by the action the plaintiff claims that she is entitled to be repaid moneys advanced by her to each defendant by way of loan, which moneys were advanced in performance of the plaintiff's obligations under a joint venture agreement, documented in a memorandum of understanding (as varied by agreement). There is an ancillary claim for specific performance of a contractual term requiring the first defendant to transfer shares in the second to fourth defendants to the plaintiff.
3. In summary, the defendants say that the various loan agreements did no more than set out an indicative timetable for the borrowers to pay the loan back to the plaintiff. They contend that were other binding obligations as between the parties not reduced to writing.
4. It is the position of the:

(a) first defendant that as a joint venture obligation, he is due to pay the plaintiff $60,000 after the final residential lots in 'Block 3' have been sold,[2] and denies that any money is already due and payable. The first defendant also denies that he holds any right, title or interest in any shares on trust for the plaintiff, or that the plaintiff is entitled to any order that the first defendant should do any things or execute any documents to record the ownership of any shares by the plaintiff;

(b) second defendant that it owes the plaintiff $73,250 plus interest at 6% from 1 February 2018 to the present, and must pay the plaintiff a further $505,000 after the final residential lots in 'Block 3' have been sold (plus 6% interest on any amount owing from time to time after that date);

(c) third defendant that no debt to the plaintiff is presently due and payable, but it admits that it must pay to the plaintiff $36,000 after the final residential lots in Block 3 have been sold; and

(d) fourth defendant that no debt to the plaintiff is presently due and payable, but it admits that it must pay to the plaintiff $71,000 after the final residential lots in Block 3 have been sold and that it is to be paid out of joint venture profits.

1. The defendants also say that they have suffered loss and damage as a result of the plaintiff's breaches of a joint venture agreement, which the plaintiff/defendant by counterclaim denies.

1. In his affidavit at pars 3 to 61 Mr Wolff outlines the procedural history of the proceeding.
2. By way of overview for present purposes, I note as follows.
3. The action was commenced by writ filed on 3 September 2021, which was indorsed with a statement of claim. An appearance was entered on behalf of the defendants on 10 September 2021 by Taylor Smart. The defendants have been represented in the action since that time.
4. The first iteration of the defence and counterclaim was filed on 12 October 2021. The defence and counterclaim has been amended on seven occasions, that is on 22 February 2023, 14 April 2023, 1 December 2023, 22 December 2023, 6 June 2024, 25 October 2024 and 20 June 2025.
5. The statement of claim was amended on 20 September 2023, and again on 25 October 2023. A reply and defence to counterclaim was filed on 16 November 2021, and amended on 28 February 2024.
6. The plaintiff sought to enter the matter for trial on 22 April 2025, and at a listing conference on 23 May 2025 the matter was listed for trial for two days on 3 and 4 September 2025, and for an additional half day on 19 September 2025.[3]
7. At the listing conference, orders were also made for the preparation of a trial bundle; to facilitate conferral as to objections to documentary evidence; the preparation of papers for the judge; the filing of written outlines of closing submissions; and further mediation.
8. The action and counterclaim were referred to mediation on two occasions, on 21 July 2022 and on 9 June 2025. On 9 June 2025 the mediation registrar terminated the mediation.
9. On 20 June 2025 on behalf of the defendants a seventh amended defence and counterclaim was filed in the action.
10. On 15 July 2025 a notice of change of representation was filed on behalf of the defendants, with Tan and Tan Lawyers replacing Taylor Smart. By a further notice filed on 13 August 2025, BMS Law replaced Tan and Tan Lawyers.
11. Evidence at trial will be given orally, the parties having provided a witness outline for each witness they intend to call.[4] The only proposed witnesses are the plaintiff/defendant by counterclaim (Surinder Randhawa), and the first defendant/first plaintiff by counterclaim (Mohinder Randhawa).
12. The trial in this action is to be conducted as an electronic trial (eTrial).[5] Although it had been ordered that by 21 July 2025 the plaintiff was to deliver to the court a USB containing an electronic copy of the trial bundle, the final version of the trial bundle was provided to the court on 15 August 2025. There are 61 documents in that bundle.
13. An outline of submissions for trial was filed on behalf of the plaintiff/defendant by counterclaim on 13 August 2025.
14. The procedural steps that the court understands have yet to be completed are as follows:

(a) by 29 July 2025 each party was to serve on the other party (moving party) an itemised objection schedule which specifies any objection that the party (objecting party) intends to make as to the admissibility of evidence comprised in any document on which the moving party intends to rely;[6]

(b) by 1 August 2025 the moving party was to serve on the objecting party an amended copy of the itemised objection schedule that states whether each objection is conceded or contested, giving a concise response as to why the evidence is admissible;[7]

(c) by 8 August 2025 the objecting party was to serve on the moving party a further amended copy of the itemised objection schedule stating whether the objecting party maintains its objection, giving a concise rejoinder (where necessary) to the moving party's response as to why the evidence is admissible;[8]

(d) by 13 August 2025 counsel for the parties were to confer, in person, by video‑link or by telephone, and attempt to resolve all outstanding objections to the admissibility of documents. The parties' itemised objection schedules were to be amended to reflect the outcome of the counsel conferral;[9]

(e) by 20 August 2025 the plaintiff is to file and serve papers for the judge;[10]

(f) by 20 August 2025 the parties are to file and serve their itemised objection schedules;[11]

(g) by 20 August 2025 the defendants file and serve their outline of submissions;[12]

(h) by 25 August 2025 the plaintiff will file and serve a chronology of events;[13]

(i) by 27 August 2025 the plaintiff file and serve any outline in reply;[14]

(j) by 28 August 2025 the defendants will file and serve their reply to the plaintiff's chronology;[15] and

(k) by 29 August 2025 the parties by their trial counsel confer as to an agreed trial timetable.[16]

1. The Rules of the Supreme Court O 34 r 4 governs this application, and provides as follows:
   1. Adjournment of trial

The judge may if he thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he thinks fit.

1. By this rule and in its inherent jurisdiction the court may grant or refuse an adjournment of proceedings. Proper principles of case management have particular relevance in relation to applications for adjournment.[17]
2. The principles governing applications to adjourn a trial were considered by the Court of Appeal in Martincic v Marusco [2016] WASCA 133 at [44] to [47], and in the disposition of this application, I adopted and applied the same:

1. Order 34 r 4 of the Rules of the Supreme Court 1971 (WA) (Rules) empowered the primary judge to adjourn the trial to such time as he thought fit if he thought it 'expedient in the interests of justice to do so'. That rule is to be construed and applied so as best to ensure the attainment of the objectives referred to in O 1 r 4B(1) of the Rules. Those objectives include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial resources and facilitating the timely disposal of business.
2. Also relevant to the exercise of the discretion to grant an adjournment is the requirement of O 1 r 4A that:

The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

1. The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
2. In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case, a decision about an adjournment to provide a further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed trial not proceeding. (Footnotes omitted)

Overview of the parties' positions The defendants' position

1. The defendants move for the trial to be vacated in circumstances where the defendants had recently changed lawyers (and the first defendant says that he was under the impression that the plaintiff was not inclined to continue the action to trial); the first defendant says that there are substantive issues which remain unresolved in the proceeding; and the parties will benefit from having the opportunity to confer on the real possibility of settlement without the need for a trial.[18]
2. The first defendant deposed to the circumstances in which he decided to seek alternative representation on behalf of the defendants/plaintiffs by counterclaim.[19] He says that the change was driven by a desire to reduce legal fees by not having both instructors and counsel substantively engaged in the matter.
3. After a false start with the engagement of Tan and Tan Lawyers, BMS Law was engaged, and immediately upon their coming onto the record, wrote to the plaintiff's solicitors seeking an adjournment of the trial and to vacate the existing trial dates.
4. As to the outstanding substantive issues, the first defendant deposed as follows:[20]
   1. I am advised that the defence and counterclaim as it stands, a document of 50-pages, would make it very challenging to refer to at trial for the Court and for both the parties, and that it would be highly beneficial to have it re-appraised to make it clear to the Court and the parties, of the Defendant's position. It would also be a more efficient use of this Honourable Court's resources.
   2. I am further advised that the documents filed in these proceedings to date, such as in particular, the witness outlines of the parties, which refers to various documents, do not point to the trial bundle. These witness outlines in its present state do not comply with Order 9 of Orders dated 24 January 2025 by Registrar Fatharly.
   3. I would also like to point out that there are also documents which have not been filed in these proceedings which I would like to be included, which in my view are relevant to my defence and counterclaim.
5. At par 30 of his affidavit, the first defendant deposed to his belief that 'this warrants additional time being provided to parties, to allow the parties to ensure that the matter is ready for trial, to ensure that precious court resources are not wasted, and that the matter is run efficiently'.
6. The first defendant also deposed to his belief that he is of the continued view that this matter can be settled without the need for trial, and that by the appointment of the defendants' new lawyers, this fresh perspective will assist in parties reaching settlement.[21]
7. In the course of the hearing, counsel for the defendants also:

(a) proffered as a suggestion the vacating of the first two trial days (that is, 3 and 4 September 2025), and for the trial to commence on the last of the dates presently allocated (that is, on the half day allocated on 19 September 2025), which trial would continue on dates to be identified after 19 September 2025;[22]

(b) without notice to the plaintiff, raised a matter of procedure which (it was submitted) required further consideration and weighed in favour of the trial dates being vacated - that was the plaintiff's failure to obtain leave pursuant to the Rules of the Supreme Court O 18 r 4(1) with respect to joinder of multiple defendants to the one proceeding;[23]

(c) noted that it was counsel's intention to review all documents, not only those that were included in the final version of the agreed electronic trial bundle that had been delivered to the court, and additional time was required to complete that task;[24]

(d) emphasised the benefits that would come from the defendants' pleaded claim and counterclaim being simplified;[25]

(e) suggested that the trial time presently allocated (that is, two and aa half hearing days) was insufficient to complete the trial in any event, particularly when regard was had to the familial relationship of the plaintiff and first defendant;[26]

(f) submitted that prejudice to the plaintiff/defendant by counterclaim caused by the trial being vacated could be compensated by an appropriate costs order.[27]

1. The plaintiff/defendant by counterclaim opposed the application. On behalf of the plaintiff/defendant by counterclaim it was submitted that:

(a) she will suffer a very real prejudice if the trial of this proceedings is delayed;[28]

(b) she will inevitably incur additional costs depending on the extent of which may mean that she is ultimately unable to pursue this matter to its conclusion;[29]

(c) if she is able to pursue the matter to its conclusion despite the increased costs then there is real doubt as to whether she will recover those additional costs as Mr Randhawa deposes that the defendants have difficulty meeting their own costs of the trial, much less meeting an adverse costs order.[30] In this regard, it was noted that the defendants had already been ordered to pay Ms Randhawa's wasted costs on other occasions in this proceeding, but had not paid them;[31]

(d) the suggestion that the plaintiff/defendant by counterclaim has demonstrated that there is no urgency to the matter is without merit;

(e) in this case, key interlocutory steps have been completed;

(f) if there are documents which have not been filed which Mr Randhawa would like to be included that he considers relevant (as suggested), why they were not included in any of the trial bundles or referred to in any of his witness outlines (as twice amended) was not expanded upon;

(g) there is not a sufficient basis for the court to conclude that the defendants will suffer any prejudice, let alone a prejudice which would warrant the vacation of the trial date; and

(h) as to further mediation, it was observed that the matter had been referred to mediation on two occasions, which were unsuccessful, and nothing prevents the defendants/plaintiffs by counterclaim from making offers to settle the matter.

1. Further, as to the procedural history, the plaintiff/defendant by counterclaim also complains that the matter has been delayed by:[32]
   1. The passing of 62 days between 31 March 2023 when the Defendants were to file Particulars of Loss and Damage and 1 June 2023 when the Defendants were to file an Amended Defence and Counterclaim which it was said would answer the need for Particulars of Loss and Damage;
   2. The passing of 266 days between 1 June 2023 when the Defendants were first to file the Amended Defence and Counterclaim and 22 February 2023 when it was ultimately filed.
   3. The passing of 42 days between 21 March 2023 being the extended deadline for the filing of witness outlines and 2 May 2023 when the Defendants ultimately filed a witness outline;
   4. The passing of 23 days between 8 November 2023, when the Defendants were first ordered to file the Third Amended Defence and Counterclaim and 1 December 2023 when the Defendants ultimately filed the Third Amended Defence and Counterclaim.
   5. The passing of 68 days between 22 December 2023 being the date that the Plaintiffs were to file an Amended Reply and Defence to the Third Amended Defence and Counterclaim but as a result of the unexpected filing of the Fourth Amended Defence and Counterclaim on the due date could not do so until after the Christmas break.
   6. The passing of 59 days between 2 April 2024 when the Defendants were first to file an Amended Witness Outline of Mohindar Randhawa and 31 May 2024 when the Defendants ultimately filed the Amended Witness Outline.
   7. The passing of 75 days between 9 August 2024, when the Defendants were to file a further amended witness outline of Mohindar Randhawa and 23 October 2024 when the further amended witness outline and further amended pleading was ultimately filed.

1. In all of the circumstances, I do not consider it expedient in the interest of justice, to adjourn the trial. I have weighed the following in the balance.
2. First, the action has been on foot since September 2021. The trial dates have been fixed since 28 May 2025. There has been a considerable period of time from the date of initiation of proceedings to the date presently fixed for trial.
3. Secondly, I accept that new lawyers have recently been engaged on behalf of the defendants. They will have 21 days from 13 August 2025 to (but not including) 3 September 2025 (the first day of trial) to read in and prepare for trial. While that is a relatively short period, the trial is a relatively modest one in so far as:

(a) the trial is listed for two and a half days (the additional half day on 19 September 2025 reserved for closing submissions, with the benefit of written outlines of closing submissions to be filed on 11 and 17 September 2025);[33]

(b) the plaintiff and the defendants each propose to lead evidence from one witness only (the plaintiff and the first defendant);

(c) no party has sought leave to adduce expert evidence;

(d) on 3 February 2025, for the purposes of trial, an amended statement of agreed facts was filed; and

(e) the final version of the trial bundle was provided to the court on 15 August 2025, and there were 61 documents in that bundle.

1. As to the number of documents in the trial bundle, which is a modest number, I also weigh in the balance that counsel for the defendants will (as foreshadowed) wish to review the discovered documents and the earlier (more expansive) version of the trial bundle in preparation for trial.
2. Thirdly, the 'substantive issues' which remain unresolved in the proceeding appear readily able to be addressed.
3. As to the pleaded defence and counterclaim, the proposed amendment to the same appears to be driven towards ease of comprehension and reference, rather than substantive amendment. While the seventh amended defence and counterclaim is, by reason of the colourful additions and deletions, not an easy read, the court is due to receive by 20 August 2025 papers for the judge,[34] which will show the consolidated pleadings in their final form.[35]
4. As to any further amendment contemplated on behalf of the defendants, as was observed by the Court of Appeal,[36] it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. In this case, the defendants have availed themselves on seven occasions to amend their pleaded defence and counterclaim. I consider that the defendants have been provided with a sufficient opportunity to present their cases.
5. As to the witness outlines, from a cursory review of the witness outlines, the plaintiff appears to refers to 19 documents, and the first defendant appears to refer to 46 documents. There does not appear to be any reason why the witness outlines might not now be updated so as to refer to the documents as identified by number in the trial bundle with relative ease.
6. As to the matter deposed to by the first defendant at par 29 of his affidavit in support of the application,[37] it is (potentially) more significant. The first defendant deposes that he 'would also like to point out that there are also documents which have not been filed in these proceedings which I would like to be included, which in my view are relevant to my defence and counterclaim'.[38]
7. As was submitted on behalf of the plaintiff, if there are documents which have not been filed which the defendants would like to be included that the first defendant considers relevant (as suggested), why they were not included in any of the trial bundles or referred to in any of his witness outlines (as twice amended) was not expanded upon.
8. This issue, raised but lacking particulars, is not one that I can fairly give significant weight.
9. I also understood that counsel for the defendants intends to review a broader set of documents, particularly an earlier version of the trial bundle, which might lead to counsel seeking to add further documents to that trial bundle. I weighed the same in the balance. Of course, if further documents are identified, that might be raised and be the subject of conferral as between counsel.
10. Without more, I am not satisfied that further time is reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
11. When considering the 'substantive issues' which remain unresolved, I have not overlooked counsel for the defendants' reference (for the first time) to the Rules of the Supreme Court O 18 r 4(1). In weighing the same, I note that the requirement of leave as being a possible issue has been raised four years after the commencement of the action by writ. Further, on my understanding of the plaintiff's pleaded claims, this does not appear to be a case where leave of the court is required.
12. In fairness to all parties, this was an issue raised without notice to counsel for the plaintiff. While my preliminary view is that it is not a matter that, on my understanding of the pleadings, appears to be a live one, it may be further considered and the subject of conferral by counsel, as it is an irregularity capable of being cured by the grant of leave to apply nunc pro tunc, if a grant of leave is otherwise assessed as being appropriate.[39] It is not a matter, raised at this late stage as being one that ought be the subject of further consideration, that weighs heavily in support of the requested adjournment of trial.
13. Fourthly, there is sufficient time for procedural steps that the court understands have yet to be completed (identified at [24] above) to be completed (albeit in a truncated timeframe). Before this hearing I asked counsel to consider and confer as to the changes that may be required in the trial directions to accommodate the trial proceeding. I will hear counsel as to the adjustments required. On balance, in my assessment it is possible for the remaining procedural sets to be completed and for the defendants to be ready for trial.
14. Fifthly, while the court encourages the parties to mediate their disputes, the parties have attended two court annexed mediations without success. The last mediation was terminated and not adjourned. While the court encourages further without prejudice negotiations, I do not give great weight to the first defendant's continued view that this matter can be settled without the need for trial, and that by the appointment of the defendants' new lawyers, this fresh perspective will assist in parties reaching settlement.[40]
15. Sixthly, I have weighed the prejudice to the plaintiff in the balance. I proceed on the basis that any vacation of trial dates over opposition from a party who has not contributed to the reasons for an adjournment causes that party prejudice in terms of delay, inconvenience and costs.[41]
16. I understand that the defendants do not resile from a cost exposure if their application to vacate was to succeed. In the outline of written submissions filed on behalf of the defendants/plaintiffs by counterclaim on 15 August 2025 in support of the application, and during the hearing, it was submitted on behalf of the defendants that any prejudice suffered by a party opposed to the adjournment can be sufficiently remedied by an order for costs thrown away.[42] I have not viewed the application before me through that lens, but rather approached the task by reference to the principles governing applications to adjourn a trial as outlined by the Court of Appeal in Martincic v Marusco.
17. I also give some weight to the submission that the plaintiff ought not now be required to bear the costs or prejudice of the defendants' decision to change their own representation with a view to minimising their own legal costs.
18. As to the suggestion that the trial time presently allocated (that is, two and a half hearing days) will be insufficient to complete the trial in any event, I have little weight to the same. This will be an electronic trial with only two witnesses, a modest number of documents, with time allocated for the preparation of written outlines of closing submissions (that is, as between 4 September 2025 and 19 September 2025). The court has also reserved 5 September 2025 as a further hearing day, should it be required. It would appear that if the parties by their trial counsel were to confer as to an agreed trial timetable,[43] there is little prospect of the trial not concluding within the time allocated and available.
19. Finally, I have also weighed in the balance that the fixing trial dates involves the allocation of scarce judicial resources and vacating dates close to the trial is prejudicial to the administration of justice generally. Late adjournments mean that other litigants, anxious to have their cases dealt with expeditiously, have been deprived of the opportunity of having their cases heard on those trial dates.[44]
20. The application to vacate the trial will be dismissed. I will hear the parties as to the costs of this application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Order 1 of the orders made on 28 May 2025.

[2] Block 3 is one of the three blocks of land, each located on Irymple Avenue, Irymple in the State of Victoria.

[3] Order 1 of the orders made on 28 May 2025.

[4] Witness outline of Surinder Randhawa filed on 9 November 2022; amended witness outline of Mohinder Randhawa filed on 25 October 2024 (previous witness outline of Mohinder Randhawa having been filed on 1 May 2023, 30 May 2024 and 11 October 2024).

[5] Order 1 of the orders made on 19 June 2025.

[6] Order 4 of the orders made on 28 May 2025.

[7] Order 5 of the orders made on 28 May 2025.

[8] Order 6 of the orders made on 28 May 2025.

[9] Order 7 of the orders made on 28 May 2025.

[10] Orders 6 - 8 of the orders made on 19 June 2025.

[11] Order 8 of the orders made on 28 May 2025.

[12] Order 9 of the orders made on 1 April 2025.

[13] Order 4 of the orders made on 1 April 2025.

[14] Order 10 of the orders made on 1 April 2025.

[15] Order 6 of the orders made on 1 April 2025.

[16] Order 12 of the orders made on 1 April 2025.

[17] LexisNexis, Civil Procedure Western Australia (at 18 August 2025) [34.4.1], citing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

[18] Affidavit of MS Randhawa affirmed 15 August 2025, pars 6, 24 - 25.

[19] Affidavit of MS Randhawa affirmed 15 August 2025, pars 7 - 23.

[20] Affidavit of MS Randhawa affirmed 15 August 2025, pars 27 - 29.

[21] Affidavit of MS Randhawa affirmed 15 August 2025, pars 31, 32.

[28] Plaintiff's outline of submissions filed on 18 August 2025, par 8.

[29] Plaintiff's outline of submissions filed on 18 August 2025, par 9; affidavit of T Wolff sworn 18 August 2025, par 78.

[30] Plaintiff's outline of submissions filed on 18 August 2025, par 10; affidavit of MS Randhawa affirmed 15 August 2025, par 9.

[31] Plaintiff's outline of submissions filed on 18 August 2025, par 10; affidavit of T Wolff sworn 18 August 2025, par 54.

[32] Affidavit of T Wolff sworn 18 August 2025, par 62.

[33] Orders 1, 11 and 12 of the orders made on 28 May 2025.

[34] Orders 6 - 8 of the orders made on 19 June 2025.

[35] Rules of the Supreme Court O 33 r 14(4).

[38] Affidavit of MS Randhawa affirmed 15 August 2025, par 29.

[39] LexisNexis, Civil Procedure Western Australia (at 18 August 2025) [18.4.1]

[40] Affidavit of MS Randhawa affirmed 15 August 2025, pars 31, 32.

[41] Morrison v Woodthorpe [No 2] [2022] WASC 373 [34(a)].

[42] Defendants' outline of submissions par 8, citing Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260 [112] filed on 15 August 2025. (The reference in the submissions to [122] appears to be a typographical error.)

[43] As contemplated by order 12 of the orders made on 1 April 2025.

[44] Morrison v Woodthorpe [No 2] [34(c)].