New South Wales
Court of Appeal
CITATION: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 HEARING DATE(S): 17 February 2009
JUDGMENT DATE:
27 February 2009JUDGMENT OF: Hodgson JA at 1; Tobias JA at 65; Basten JA at 66 DECISION: (1) Appeal allowed.
(2) Orders 2 to 5 below set aside.
(3) In lieu thereof, order that Parkline pay the applicants’ costs of the proceedings not dealt with by any previous costs order, excluding the costs of the hearing on 2 November 2005.
(4) Order that Parkline pay the applicants’ costs of the leave application and the appeal, and have a certificate of the Suitors’ Fund Act 1951 if otherwise eligible.CATCHWORDS: PROCEDURE – Costs – Discontinuance – Default provision for costs in UCPR 42.19 – Need for reason for departing from the default provision – Primary judge makes costs order in favour of discontinuing plaintiff – Whether decision vitiated by error – Re-exercise of discretion – Whether appropriate to determine outstanding questions of costs prior to considering costs order to be made on discontinuance – Whether circumstance that discontinuance was not tantamount to capitulation justified departing from the default provision – Reasonableness of commencement of proceedings challenged by defendant, and not resolved because of plaintiff’s decision to discontinue – Relevance of late application by defendant to amend defence. LEGISLATION CITED: Building and Construction Industry Security of Payments Act 1999
Civil Procedure Act 2005 (NSW)
High Court Rules 1952 (Cth), O 71, r 39
Migration Act 1958 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) r 12.1, r 12.3, r 42.1, r 42.19, r 42.10
Trade Practices Act 1974 (Cth)CATEGORY: Principal judgment CASES CITED: Australian Coal & Shale Employees’ Federation v The Commonwealth [1953] HCA 25; 94 CLR 621
Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365
Bitannia Pty Limited v Parkline Constructions Pty Limited [2006] NSWCA 238; (2006) 67 NSWLR 9
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497
Foukkare v Angreb Pty Limited [2006] NSWCA 335
McCormack v Federal Commissioner of Taxation [1979] HCA 18; 143 CLR 284
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386
One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; 101 FCR 548
O’Neill v Mann [2000] FCA 1680
Ritter v Godfrey [1920] 2 KB 47PARTIES: BITANNIA PTY LIMITED (ACN 062 312 323) and ROSSFIELD NOMINEES (ACT) PTY LTD (ACN 008 657 190) (Applicants)
PARKLINE CONSTRUCTIONS PTY LIMITED (ACN 098 171 996) (Respondent)FILE NUMBER(S): CA 40763/07 COUNSEL: R F MARGO SC/ J J YOUNG (Applicants)
D T MILLER/ D A MOUJALLI (Respondent)SOLICITORS: JPR Legal (Applicants)
MasseyBailey (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1998/05 LOWER COURT JUDICIAL OFFICER: J C Gibson DCJ LOWER…
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Details
- Case
- [2009] NSWCA 32
- Decision Date
CaseChat Overview and Summary
Bitannia Pty Ltd and others (the applicants) appealed a costs order made by a primary judge in favour of Parkline Constructions Pty Ltd (the respondent) following the respondent's discontinuance of proceedings. The dispute concerned the appropriate costs order to be made when a plaintiff discontinues an action, particularly where the defendant had challenged the reasonableness of the proceedings' commencement. The appeal was heard by Hodgson JA, Tobias JA, and Basten JA in the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether the primary judge erred in departing from the default costs provision under UCPR 42.19, which generally favours the discontinuing party bearing the costs of the discontinued proceedings. The court was required to determine if there were sufficient reasons to justify the primary judge's decision to order the applicants to pay the respondent's costs, and whether the circumstances, including the defendant's challenge to the proceedings and a late application to amend the defence, warranted such a departure. The court also considered whether it was appropriate to determine outstanding questions of costs before making an order on discontinuance.
The Court of Appeal found that the primary judge had erred in departing from the default provision. The court reasoned that the discontinuance was not a capitulation by the respondent, and the challenge to the reasonableness of commencing the proceedings, which remained unresolved due to the discontinuance, was a significant factor. The court held that the primary judge had not provided adequate reasons for departing from the usual rule that a discontinuing party pays the costs of the discontinued proceedings. Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's orders, and ordered that Parkline Constructions Pty Ltd pay the applicants' costs of the proceedings not previously dealt with, excluding the costs of a specific hearing, and also pay the costs of the leave application and the appeal.
The central legal issue before the Court of Appeal was whether the primary judge erred in departing from the default costs provision under UCPR 42.19, which generally favours the discontinuing party bearing the costs of the discontinued proceedings. The court was required to determine if there were sufficient reasons to justify the primary judge's decision to order the applicants to pay the respondent's costs, and whether the circumstances, including the defendant's challenge to the proceedings and a late application to amend the defence, warranted such a departure. The court also considered whether it was appropriate to determine outstanding questions of costs before making an order on discontinuance.
The Court of Appeal found that the primary judge had erred in departing from the default provision. The court reasoned that the discontinuance was not a capitulation by the respondent, and the challenge to the reasonableness of commencing the proceedings, which remained unresolved due to the discontinuance, was a significant factor. The court held that the primary judge had not provided adequate reasons for departing from the usual rule that a discontinuing party pays the costs of the discontinued proceedings. Consequently, the Court of Appeal allowed the appeal, set aside the primary judge's orders, and ordered that Parkline Constructions Pty Ltd pay the applicants' costs of the proceedings not previously dealt with, excluding the costs of a specific hearing, and also pay the costs of the leave application and the appeal.
Orders
Orders of the court
(1) Appeal allowed. (2) Orders 2 to 5 below set aside. (3) In lieu thereof, order that Parkline pay the applicants' costs of the proceedings not dealt with by any previous costs order, excluding the costs of the hearing on 2 November 2005. (4) Order that Parkline pay the applicants' costs of the leave application and the appeal, and have a certificate of the Suitors' Fund Act 1951 if otherwise eligible.
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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