Alcoa of Australia Ltd v Apache Energy Ltd [No 5]

[2013] WASC 480

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ALCOA OF AUSTRALIA LTD -v- APACHE ENERGY LTD [No 5] [2013] WASC 480

CORAM:   LE MIERE J

HEARD:   6 SEPTEMBER 2013

DELIVERED          :   6 SEPTEMBER 2013

FILE NO/S:   CIV 1481 of 2011

BETWEEN:   ALCOA OF AUSTRALIA LTD

Plaintiff

AND

APACHE ENERGY LTD
First Defendant

APACHE NORTHWEST PTY LTD
Second Defendant

TAP (HARRIET) PTY LTD
Third Defendant

KUFPEC AUSTRALIA PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Costs of application to strike out parts of the defences - Turns on own facts

Legislation:

Nil

Result:

Plaintiff pay 75% of the first, second and third defendants' costs

Category:    B

Representation:

Counsel:

Plaintiff:     Mr K J Lyons SC

First Defendant             :     Mr B D Luscombe

Second Defendant         :     Mr B D Luscombe

Third Defendant           :     Ms A Richmond-Scott

Fourth Defendant          :     Mr S J McComish

Solicitors:

Plaintiff:     Tottle Partners as agents for Landers & Rogers

First Defendant             :     K & L Gates

Second Defendant         :     Clifford Chance

Third Defendant           :     Lavan Legal

Fourth Defendant          :     Allens Arthur Robinson

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

Alcoa of Australia Ltd v Apache Energy Ltd [No 3] [2013] WASC 334

1. LE MIERE J:  The plaintiff applied to strike out certain paragraphs of the defence filed by each of the defendants.  I extended the time for the plaintiff to apply to strike out paragraphs of the defendants' defence and struck out some paragraphs of the defences of the first to third defendants:  Alcoa of Australia Ltd v Apache Energy Ltd [No 3] [2013] WASC 334. This is an edited version of my ex tempore reasons for ordering that the plaintiff pay 75% of the first, second and third defendants' costs of the plaintiff's application to strike out their defence and for giving the defendants leave to file amended defences by 13 December 2013.

2. The plaintiff and the first to third defendants recognise that the plaintiff was partially successful in the application and partly unsuccessful.  The defendants were successful on issues which were greater in number and which took a greater part of the hearing and preparation time.  In my view, the most convenient order to make is that the plaintiff pay a percentage of the defendants' costs of the application.

3. In my view, the appropriate percentage to reflect the relative success of the parties is that the plaintiff should pay 75% of the first, second and third defendants' costs.  The order as to costs between the plaintiff and the first to third defendants will be: 

   The plaintiff pay 75% of the first, second and third defendants' costs of the plaintiff's application to strike out their defence.

4. The next issue concerns the defendants having leave to file amended defences.  The first matter is whether that leave should be general or confined to amending their defences in relation to the defence of force majeure.  It is common ground between the parties that the leave should be confined to amending the defence to plead the force majeure defences and, hence, the orders should reflect that.

5. The second question is the matter of time.  I accept that the defendants now have had the statement of claim and have considered this matter for an extended period of time.  Notwithstanding that, the first to third defendants say that they will now, in effect, have to consider and reformulate the pleading of their defences and that that will take a considerable period of time.  The time that is asked for by the defendants is 13 December.  I will give the defendants until 13 December on the basis that that is the time which they have specified that the matter will be completed by.  Hence, I expect it to be completed by that date and there will be no extensions of time in the absence of compelling evidence.