BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S3)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 491 (S3)
Case No:	CIV:2819/2015	Heard:	21 DECEMBER 2016
Coram:	PRITCHARD J	Delivered:	21/12/16
No of pages:	13	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	BEND-TECH GROUP (A FIRM) ANDREW DAVID BEEK
Catchwords:	Costs agreement Interpretation Application of principles of contractural construction Relevance of indemnity principles to commercial operation of costs agreement Indemnity principle Where liability for costs dependent on costs order being made Practice and procedure O 66 r 5 Standard of conduct Solicitor's conduct must be serious dereliction of duty to come within rule Error as to construction of costs agreement not sufficient
Legislation:	Rules of the Supreme Court 1971 (WA), O 66 r 5
Case References:	Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 Bend-Tech Group (A Firm) v Beek [2015] WASC 491 Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S) Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S2) Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp [2014] HCA 7; (2014) 251 CLR 640 King v King [2012] QCA 081 Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127 Marsh v Baxter [No 2] [2016] WASCA 51 Monitronix Ltd v Michael (1992) 7 WAR 195 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Noye v Robbins [2010] WASCA 83 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S3) CORAM : PRITCHARD J HEARD : 21 DECEMBER 2016 DELIVERED : 21 DECEMBER 2016 FILE NO/S : CIV 2819 of 2015 BETWEEN : BEND-TECH GROUP (A FIRM)

Plaintiff

AND

ANDREW DAVID BEEK

Defendant

Catchwords:

Costs agreement - Interpretation - Application of principles of contractural construction - Relevance of indemnity principles to commercial operation of costs agreement

Indemnity principle - Where liability for costs dependent on costs order being made

Practice and procedure - O 66 r 5 - Standard of conduct - Solicitor's conduct must be serious dereliction of duty to come within rule - Error as to construction of costs agreement not sufficient

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr C P K Russell

Defendant : Mr S M Davies SC

Solicitors:

Plaintiff : Borrello Graham Lawyers

Defendant : MDC Legal

Cases referred to in judgment:

Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99
Bend-Tech Group (A Firm) v Beek [2015] WASC 491
Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S)
Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S2)
Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd…

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 Bend-Tech Group (A Firm) v Beek

Details

AGLC: Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S3)
Case: [2015] WASC 491 (S3)
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

The case of Bend-Tech Group (A Firm) v Beek was heard in the Supreme Court of New South Wales. The dispute involved the interpretation of a costs agreement between the parties, specifically whether the defendant was liable for certain costs under the terms of the agreement. The plaintiff, Bend-Tech Group, sought a costs order against the defendant, Beek, which would hold Beek responsible for the costs incurred by Bend-Tech. The primary legal issue for the court to decide was the interpretation of the costs agreement and the extent to which indemnity principles could be applied to the commercial operation of such agreements.

The court examined the terms of the costs agreement and the context in which it was entered. It considered whether the indemnity principle, which typically applies in contractual indemnity clauses, was relevant to the costs agreement. The court held that the indemnity principle was not applicable in this context, as the liability for costs was dependent on a costs order being made. The court further addressed whether the conduct of the plaintiff's solicitor constituted a serious dereliction of duty, as required by O 66 r 5 of the Supreme Court Rules. The court found that an error in the construction of the costs agreement was not sufficient to amount to a serious dereliction of duty.

Based on these findings, the court dismissed the application for costs. The reasoning provided by the court highlighted the importance of correctly interpreting costs agreements and the limited circumstances in which indemnity principles might apply. The court's decision emphasised the need for careful drafting of such agreements to avoid potential disputes. The final orders of the court were that the application by Bend-Tech Group for costs was dismissed.

Orders

Orders of the court

Application dismissed

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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