ARMSTRONG & ANOR -v- ROKICH & ANOR [2008] WADC 182 (S)

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 182 (S)
Case No:	CIV:167/2008	Heard:	15-18 & 29 SEPTEMBER 2008 & 25 JANUARY 2010
Coram:	STAUDE DCJ	Delivered:	23/12/08
Location:	PERTH	Supplementary Delivered:	9/04/10
No of pages:	13	Judgment Part:	1 of 1
Result:	Order for indemnity costs
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Parties:	ASHLEY JOHN ARMSTRONG NIGEL FRANCIS ARMSTRONG ANTHONY JOHN ROKICH VIOLET ROKICH TABANI NOMINEES PTY LTD LYNTON THOMAS SAUNDERS
Catchwords:	Costs Indemnity costs application by plaintiffs Principles to be applied Whether defendants' conduct warrants indemnity costs order
Legislation:	District Court of Western Australia Act 1969, s 64 Rules of the Supreme Court 1971, O 66
Case References:	Armstrong & Anor v Rokich & Anor [2008] WADC 182 Calderbank v Calderbank [1976] Fam 93 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24(S) Dobb v Hacket (1993) 10 WAR 532 Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 28 WAR 95 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 Gove v Black & Ors [2006] WASC 298(S) Re Malleson Stewart Stawell & Nankivell [1931] VLR 127 Stewart v Biodiesel Producers Ltd [2009] WASC 145(S) Tranchita v Danehill Nominees Pty Ltd [No 2] [2007] WASC 248 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 18 WAR 190

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : ARMSTRONG & ANOR -v- ROKICH & ANOR [2008] WADC 182 (S) CORAM : STAUDE DCJ HEARD : 15-18 & 29 SEPTEMBER 2008 & 25 JANUARY 2010 DELIVERED : 23 DECEMBER 2008

SUPPLEMENTARY
DECISION : 9 APRIL 2010 FILE NO/S : CIV 167 of 2008 BETWEEN : ASHLEY JOHN ARMSTRONG

NIGEL FRANCIS ARMSTRONG

Plaintiffs

AND

ANTHONY JOHN ROKICH

VIOLET ROKICH

Defendants

TABANI NOMINEES PTY LTD

First Third Party

LYNTON THOMAS SAUNDERS

Second Third Party

(Page 2)

Catchwords:

Costs - Indemnity costs application by plaintiffs - Principles to be applied - Whether defendants' conduct warrants indemnity costs order

Legislation:

District Court of Western Australia Act 1969, s 64

Rules of the Supreme Court 1971, O 66

Result:

Order for indemnity costs

Representation:

Counsel:

Plaintiffs : Mr J A Thomson

Defendants : Mr S V Forbes

First Third Party : No appearance

Second Third Party : No appearance

Solicitors:

Plaintiffs : Maxim Litigation Consultants

Defendants : Hotchkin Hanly

First Third Party : Downings Legal

Second Third Party : Downings Legal

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

Armstrong & Anor v Rokich & Anor [2008] WADC 182
Calderbank v Calderbank [1976] Fam 93
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins v Westralian Sands Ltd (1993) 9 WAR 56
Commissioner of State Revenue v Artistic Pty Ltd [2008] WASCA 24(S)
Dobb v Hacket (1993) 10 WAR 532
Flotilla Nominees Pty Ltd v Western Australian Land…

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.

Continue reading Armstrong v Rokich

Details

AGLC: Armstrong v Rokich [2008] WADC 182 (S)
Case: [2008] WADC 182 (S)
Decision Date: 23 DECEMBER 2008

CaseChat Overview and Summary

The case of Armstrong v Rokich involved a legal dispute between the plaintiffs, Armstrong, and the defendants, Rokich, which was heard by the Supreme Court of Western Australia. The plaintiffs sought indemnity costs from the defendants, claiming that the defendants' conduct during the proceedings warranted such an order. The central issue before the court was whether the defendants' actions justified an indemnity costs order, given the principles that govern such decisions.

The court examined the defendants' conduct in light of established legal principles concerning indemnity costs. It considered factors such as the defendants' behaviour throughout the litigation, the reasonableness of their position, and the proportionality of the costs incurred. The court noted that indemnity costs are a severe penalty and are awarded only in cases where the defendants' conduct is egregious or where the plaintiffs' case is clear and the defendants' position is unreasonable.

After careful deliberation, the court concluded that the defendants' conduct warranted an indemnity costs order. The court found that the defendants' actions were not only unreasonable but also contributed significantly to the costs incurred by the plaintiffs. The court's decision was based on the clear evidence of the defendants' unreasonable position and their persistent conduct throughout the proceedings. As a result, the court ordered the defendants to pay the plaintiffs' indemnity costs.

The final orders of the court included an explicit direction for the defendants to pay the plaintiffs' indemnity costs, reflecting the court's finding that the defendants' conduct justified such a penalty under the applicable legal principles. This outcome underscores the importance of reasonable conduct in litigation and the potential consequences for parties whose actions are deemed egregious.

Orders

Orders of the court

Order for indemnity costs

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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