Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd - [2003] WASC 53 (S2)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	ALPINE HOLDINGS PTY LTD & ORS -v- WARWICK ENTERTAINMENT CENTRE PTY LTD & ORS [2003] WASC 53 (S2)

CORAM

: ROBERTS-SMITH J

HEARD

:	4-8 & 11-14 NOVEMBER 2002, 27 MAY 2004

DELIVERED

: 24 MARCH 2003

SUPPLEMENTARY

DECISION

: 27 MAY 2004

FILE NO/S

:	CIV 1208 of 1998

BETWEEN

:	ALPINE HOLDINGS PTY LTD (ACN 009 471 907) First Plaintiff

EGON KONIG Second Plaintiff
SHELLEY KONIG
Third Plaintiff
AND
WARWICK ENTERTAINMENT CENTRE PTY LTD
(ACN 054 246 918)
First Defendant
WESTGEM HOLDINGS PTY LTD
(ACN 050 218 954)
Second Defendant
ROBERT STEELE
Third Defendant

Catchwords:

Costs - Extension of time to apply for removal of costs limit - Delay - Factors -
Whether prejudice to other parties

Costs - Removal of limit for getting up - Order 66 r 12(1) Rules of the Supreme Court - Unusual complexity - Other good or sufficient reason - Whether amount of work involved constitutes a good or sufficient reason

Legislation:

Legal Practice Act 2003 (WA), s 215

Rules of the Supreme Court, O 66 r 12(1)

Result:

Application to extend time granted

Cost limit removed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr P Sheavyn & Mr O D Feinauer
Second Plaintiff	:	Mr P Sheavyn & Mr O D Feinauer
Third Plaintiff	:	Mr P Sheavyn & Mr O D Feinauer
First Defendant	:	Mr N D C Dillon
Second Defendant	:	Mr N D C Dillon
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

[2003] WASC 53 (S2)

Solicitors:

First Plaintiff	:	Feinauer & Associates
Second Plaintiff	:	Feinauer & Associates
Third Plaintiff	:	Feinauer & Associates
First Defendant	:	Williams & Hughes
Second Defendant	:	Williams & Hughes
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

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

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors

[2003] WASC 53

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors

[2003] WASC 53(S)

Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197
McLean v Kerville, unreported; SCt of WA; Library No 6455; 1 October 1986
Schmidt v Gilmour [1988] WAR 219

Snowtop Mushrooms v Powley, unreported; FCt SCt of WA; Library No 4501;

14 May 1982

Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor [2002] WASC 58(S2)

Wayella Nominees Pty Ltd as Trustee for the D J Gordon Family Trust v

Cowden Ltd [2003] WASC 210(S)

Case(s) also cited:

Collins v Westralian Sands Ltd (1993) 9 WAR 56
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Geneva Finance Ltd v Resource & Industry Ltd [2002] WASC 121(S)

Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003]

WASCA 293(S)

[2003] WASC 53 (S2)

ROBERTS-SMITH J

ROBERTS-SMITH J: The trial of this action was heard before me over nine hearing days from the 4…

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

AGLC: Alpine Holdings Pty Ltd v Warwick Entertainment Centre Pty Ltd [2003] WASC 53 (S2)
Case: [2003] WASC 53 (S2)
Decision Date: 27 MAY 2004

CaseChat Overview and Summary

The plaintiffs, Alpine Holdings, sought to remove a limit on the costs that could be awarded against them in a proceeding they had initiated against the defendants, Warwick Entertainment Centre. The case was heard in the Supreme Court of Victoria, where the plaintiffs argued that they should be allowed to remove the costs limit under Order 66 rule 12(1) of the Supreme Court Rules. The defendants opposed the application on the grounds that the plaintiffs had not applied within a reasonable time, which had caused them prejudice. The court needed to determine whether the plaintiffs' delay in applying to remove the costs limit was justified, and if the delay had caused prejudice to the defendants.

The legal issues the court had to resolve were whether the plaintiffs' delay in applying to remove the costs limit was reasonable and whether the delay had prejudiced the defendants. The court considered the factors set out in the relevant rules and case law to determine if the plaintiffs had a good or sufficient reason for the delay, and whether the amount of work involved constituted a good or sufficient reason. The court also considered whether the defendants had been prejudiced by the delay, and whether the plaintiffs' delay had caused them to incur additional costs or other consequences.

The court found that the plaintiffs' delay in applying to remove the costs limit was not unreasonable, as the case was unusually complex, and the plaintiffs had acted promptly once they had become aware of the complexity. The court also found that the defendants had not been prejudiced by the delay, as they had not incurred additional costs or other consequences as a result of the delay. The court therefore granted the plaintiffs' application to remove the limit on the costs that could be awarded against them. The court noted that the amount of work involved in the case was a good or sufficient reason for the delay, and that the defendants had not provided any evidence of prejudice.

The court ordered that the limit on the costs that could be awarded against the plaintiffs be removed, and that the plaintiffs were entitled to recover their costs up to the amount of $3 million. The court also noted that the defendants would be liable for the costs of the proceeding, which were to be assessed on the standard basis. The court emphasised that the decision was based on the specific circumstances of the case, and that each case would be decided on its own merits.

Orders