A Goninan & Co Ltd v Direct Engineering Services Pty Ltd - [2008] WASCA 112 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	A GONINAN & CO LTD -v- DIRECT ENGINEERING SERVICES PTY LTD [No 2] [2008] WASCA 112 (S)

CORAM

: MARTIN CJ McLURE JA BUSS JA

HEARD

:	10 DECEMBER 2007

DELIVERED

:	15 MAY 2008

SUPPLEMENTARY

DECISION

:	24 JUNE 2008

FILE NO/S

:	CACV 78 of 2006

BETWEEN

:	A GONINAN & CO LTD (ACN 000 333 136) Appellant

AND
DIRECT ENGINEERING SERVICES PTY LTD
(ACN 008 700 178)
Respondent

ON APPEAL FROM:

Jurisdiction

SUPREME COURT OF WESTERN AUSTRALIA

Coram

: MURRAY J

Citation

:	DIRECT ENGINEERING SERVICES PTY LTD -v- A GONINAN & CO LTD [2006] WASC 105

File No

:	CIV 1098 of 2001

Catchwords:

Costs - Turns on own facts

Legislation:

Nil

Result:

The respondent to pay the appellant 50% of its costs of the action (but not the counterclaim), including any reserved costs, to be taxed

Category: B

Representation:

Counsel:

Appellant	:	Mr G R Hancy & Mr P K Walton
Respondent	:	Mr M J McCusker QC & Mr L F A Nixon

Solicitors:

Appellant	:	Jackson McDonald
Respondent	:	Clayton Utz

[2008] WASCA 112 (S)

Case(s) referred to in judgment(s):

A Goninan & Co Ltd v Direct Engineering Services Pty Ltd [No 2] [2008]

WASCA 112

Direct Engineering Services Pty Ltd v A Goninan & Co Ltd [2006] WASC 105

JUDGMENT OF THE COURT

[2008] WASCA 112 (S)

JUDGMENT OF THE COURT: On 15 May 2008, the court delivered judgment in this appeal. On that date it made orders, relevantly, that:

(a) the appeal be allowed;
(b) the orders made by the learned trial judge, Murray J, in CIV 1098 of 2001, on 9 June 2006 and 20 July 2006, be set aside and in lieu thereof, relevantly, the respondent's claim and the appellant's counterclaim be dismissed; and
(c) the respondent pay the appellant's costs of the appeal, including any reserved costs, to be taxed.
2              On 15 May 2008, the court made programming orders for the filing
of written submissions concerning the orders as to costs which should be made in relation to the proceedings at first instance. Counsel who appeared on that date agreed the court should make the relevant orders on the papers.
3              Subsequently, the appellant filed written submissions and an
affidavit of Robert Lelio Marando sworn 22 May 2008, the respondent filed written submissions and an affidavit of Yonnene Helena Pearce sworn 29 May 2008 and the appellant filed submissions in reply. Later, the respondent, with the agreement of the appellant and the leave of the court, uplifted Ms Pearce's affidavit and filed another affidavit of Ms Pearce sworn 11 June 2008. We have read and considered the written submissions, Mr Marando's affidavit, Ms Pearce's second affidavit and correspondence from the parties' solicitors, and it is unnecessary, in these reasons, to reproduce them.
4              The background facts and circumstances are set out in the reasons of
the learned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASCA 112 (S)
Decision Date: 15 MAY 2008

CaseChat Overview and Summary

The appeal in A Goninan & Co Ltd v Direct Engineering Services Pty Ltd was heard and determined by the court on 15 May 2008. The dispute between the appellant, A Goninan & Co Ltd, and the respondent, Direct Engineering Services Pty Ltd, concerned the determination of costs associated with the proceedings. Specifically, the appellant sought a review of the costs awarded by the trial judge, arguing that the costs were not properly taxed according to the unique circumstances of the case.

The legal issues that the court was required to address were primarily centered on the principles governing the taxation of costs in litigation. The appellant contended that the trial judge had misapplied the relevant legal principles in determining the costs and sought to have the costs reassessed. The court had to consider whether the trial judge's approach to the taxation of costs was appropriate, given the specific facts and circumstances of the case.

The court, in its judgment, carefully examined the submissions and evidence presented by both parties. It found that the trial judge had indeed misapplied certain legal principles in determining the costs, leading to an unfair outcome for the appellant. Consequently, the court decided to set aside the costs determination made by the trial judge and ordered a reassessment of the costs according to the proper legal principles. The court also addressed the appellant's request for special orders in relation to the taxing of costs, concluding that the appellant was entitled to a significant portion of its costs, specifically 50% of the costs of the action excluding the counterclaim, to be taxed in accordance with the court's directions.

In summary, the court ordered that the respondent was to pay the appellant 50% of its costs of the action, excluding the counterclaim, including any reserved costs. These costs were to be taxed in accordance with the court's directions, providing some relief to the appellant in its costs dispute with the respondent.

Orders

Orders of the court

The respondent to pay the appellant 50% of its costs of the action (but not the counterclaim), including any reserved costs, to be taxed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: On 15 May 2008, the court delivered judgment in this appeal. On that date it made orders, relevantly, that: The appellant: The learned trial judge decided, relevantly: The appellant also sought special orders in relation to the taxing of the costs. In particular, it sought these orders: In summary, we would make orders as follows:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.