Allplastics Engineering Pty Ltd v Dornoch Ltd

Case [2006] NSWCA 33

New South Wales


Court of Appeal


CITATION: Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 21 February 2006
 
JUDGMENT DATE: 
21 February 2006
JUDGMENT OF: Santow JA at 1; Tobias JA at 2
EX TEMPORE JUDGMENT DATE: 02/21/2006
DECISION: 1. Grant the claimant an extension of time within which to seek leave to appeal from the costs orders made by Acting Judge Bowden on 2 December 2002 and 2 December 2003; 2. Grant leave to appeal against those orders to the claimant and direct the claimant to file its Notice of Appeal within seven days of the date of these orders; 3. Appeal allowed; 4. Set aside the orders for costs (other than the costs of the day) made by the primary judge on 2 December 2002 and 2 December 2003 and in lieu thereof order that the claimant pay the costs of the opponent thrown away or incurred solely as a consequence of the non-compliance by the claimant to file and serve its affidavit evidence in chief in accordance with the orders of the District Court made on 21 June 2002, 20 August 2002, 2 December 2002 and 2 June 2003; 5. Order that the opponent pay the claimant’s costs of the application for extension of time, the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified
CATCHWORDS: COSTS – delay filing affidavit evidence – delay preventing progress of trial – costs order not sought – reasons for costs order not given – order that plaintiff pay all respondent costs until affidavits served – whether costs order punitive – purpose of costs orders – principles
LEGISLATION CITED: District Court Act 1973, s 148B, s 68A
Suitor’s Fund Act 1951
District Court Practice Note 33
CASES CITED: House v The King (1936) 55 CLR 499
Ohn v Walton (1995) 36 NSWLR 77
Whyte v Brosch(1998) 45 NSWLR 354
Re Will of F P Gilbert (deceased) (1946) 46 SR (NSW) 318
PARTIES: Allplastics Engineering Pty Limited
Dornoch Limited
FILE NUMBER(S): CA 40326/05
COUNSEL: Cl: Mr P Clay
Opp: Mr R Dickson
SOLICITORS: Cl: Stephen Doyle & Associates
Opp: Shaw McDonald Pty Ltd, Sydney
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC6630/01
LOWER COURT JUDICIAL OFFICER: Bowden A-DCJ



                            CA 40326/05

                            SANTOW JA
                            TOBIAS JA

                            Tuesday 21 February 2006
ALL PLASTICS ENGINEERING PTY LIMITED v DORNOCH LIMITED
Judgment

1 SANTOW JA: I agree with Tobias JA.

2 TOBIAS JA: On 29 June 2001 the claimant commenced proceedings by way of Statement of Claim in the District Court of New South Wales against the opponent claiming the sum of $448,318 as a result of the destruction on or about 19 February 1999 of its premises by fire against the risk of which it claimed to be insured by the opponent…

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Allplastics Engineering Pty Ltd v Dornoch Ltd [2006] NSWCA 33
Case
[2006] NSWCA 33
Decision Date

CaseChat Overview and Summary

Allplastics Engineering Pty Ltd (the claimant) sought leave to appeal against costs orders made by Acting Judge Bowden in the District Court of New South Wales. The dispute concerned delays in the claimant's filing of affidavit evidence, which had prevented the progress of the trial. The original costs orders directed the claimant to pay all of the respondent's costs until the affidavits were served.

The primary legal issue before Santow and Tobias JJA was whether the costs orders made by the primary judge were punitive in nature and, if so, whether they were justified. The court was required to consider the purpose of costs orders and the principles governing their imposition, particularly in circumstances of delay and non-compliance with court directions.

The Court of Appeal allowed the appeal, finding that the original costs orders were punitive and that the primary judge had not provided sufficient reasons for making such orders. The court reasoned that costs orders should generally reflect the costs incurred due to a party's conduct, rather than being punitive. Accordingly, the court set aside the original costs orders, save for the costs of the day. In their place, the court ordered that the claimant pay the costs of the opponent thrown away or incurred solely as a consequence of the claimant's non-compliance with previous court orders regarding the filing and service of affidavit evidence. The court also made orders regarding the costs of the appeal itself.

Orders

Orders of the court

1. Grant the claimant an extension of time within which to seek leave to appeal from the costs orders made by Acting Judge Bowden on 2 December 2002 and 2 December 2003; 2. Grant leave to appeal against those orders to the claimant and direct the claimant to file its Notice of Appeal within seven days of the date of these orders; 3. Appeal allowed; 4. Set aside the orders for costs (other than the costs of the day) made by the primary judge on 2 December 2002 and 2 December 2003 and in lieu thereof order that the claimant pay the costs of the opponent thrown away or incurred solely as a consequence of the non-compliance by the claimant to file and serve its affidavit evidence in chief in accordance with the orders of the District Court made on 21 June 2002, 20 August 2002, 2 December 2002 and 2 June 2003; 5. Order that the opponent pay the claimant’s costs of the application for extension of time, the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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