| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BORELLI -v- MARKETING AND SERVICES PTY LTD & ANOR [2005] WADC 176 CORAM : COMMISSIONER SCHOOMBEE HEARD : 30 MAY 2005 DELIVERED : 19 SEPTEMBER 2005 FILE NO/S : CIV 250 of 2004 BETWEEN : MONIQUE LAURA BORELLI Plaintiff
AND
MARKETING AND SERVICES PTY LTD (ACN 068 587 502)
First Defendant
DESMOND LIONEL WILLIAMS
Second Defendant
Catchwords: Appeal from decision of Registrar refusing summary judgment - Appeal filed out of time - Inadequate reasons for delay - No arguable case on merits - Leave to extend the time for the filing of the appeal refused
Appeal from decision of Registrar allowing amendment to statement of claim - Statement of claim vague and embarrassing - Appeal upheld
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Legislation:
High Court Rules 1952 (Cth)
Rules of the Supreme Court 1971
Result: Leave to appeal refused in respect of Registrar's dismissal of application for summary judgment
Appeal from Registrar's decision to allow amendment of statement of claim granted Representation:
Counsel:
Plaintiff : Mr P Mendelow
First Defendant : Mr K Staffa
Second Defendant : Mr K Staffa
Solicitors:
Plaintiff : Holborn Lenhoff Massey
First Defendant : Staffa Lawyers
Second Defendant : Staffa Lawyers
Case(s) referred to in judgment(s):
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
Gallo v Dawson (1990) 64 ALJR 458
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Mantegna v Seafeast Sales Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950497; 24 August 1995
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Webster v Lampard (1993) 177 CLR 598
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Whitehall Holdings Pty Ltd & Anor v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991
Case(s) also cited:
Capebay Holdings Pty Ltd v Marks Healy Sands [2003] WASC 9
Duskwood Pty Ltd v Bellara Willows Pty Ltd & Ors [2001] WASC 281
Evans v Bartlam [1937] AC 473
FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Insurance Cases 61384
Gore & Ors (trading as Clayton Utz) v Justice Corporation Pty Ltd [2002] 119 FCR 429
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Knight & Anor v FP Special Assets Ltd & Ors (1992) 174 CLR 178
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223
Orchard v South Eastern Electricity Board [1987] 1 All ER 95
Polygram Records Inc & Polygram Pty Ltd v Raben Footwear Pty Ltd (1996) 140 ALR 617
Quancorp Pty Ltd & Anor v MacDonald & Ors [2000] WASC 213
Re Bond Corporation Holdings Ltd (1990) 1 WAR 465
Ridehalgh v Horsefield [1994] 3 All ER 848
Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492
W J Green & Co v Cooper & Oxley Constructions Co Pty Ltd (1993) 10 WAR 227
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
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1 COMMISSIONER SCHOOMBEE: This matter concerns two appeals filed by the appellants (the first and second defendants at first instance) against orders made by Registrar Kingsley dismissing the appellants' application for summary judgment against the respondent (the plaintiff at first instance) and on a subsequent occasion allowing the respondent to amend her statement of claim. Both appeals were filed out of time.
2 Pursuant to O 6 r 11(1) of the District Court Rules provides that a person affected by a judgment, order or decision of a Registrar may appeal therefrom to a Judge in chambers. Seaman, Civil Procedure, Western Australia, vol 2, states the following in respect of an appeal from a Registrar to a Judge in chambers at [15,410.1]: "The appeal is a complete review de novo by the judge which is dealt with by way of an actual rehearing of the application which led to the order under the appeal. The judge treats the matter as though it came before him or her for the first time although the party appealing must open. It is common practice for the judge to admit further or additional evidence by affidavit unless a party has taken his or her stand on the evidence as it stood. Admission of the further evidence is in the discretion of the court." 3 Order 6 r 11(2) provides that "the appeal shall be by notice in writing which is to be given within five days of the decision complained of or such further time as may be allowed by a Judge or by a Registrar." 4 The notice of appeal was filed on 8 March 2005. The order dismissing the appellants' application for summary judgment was made on 21 October 2004. This means that the notice of appeal is out of time by more than four months in respect of this decision. The Registrar's decision allowing the respondent to amend her statement of claim was handed down on 25 January 2005. Accordingly, the notice of appeal is approximately six weeks out of time in respect of this decision.
Background 5 The respondent filed a statement of claim in which she alleged that she had entered into an oral agreement with the first appellant in or about 6 April 1999 pursuant to which she was to acquire 150,000 $1.00 fully paid shares in the first appellant for an agreed consideration of $150,000. The respondent pleaded that in or about April/May 1999 she duly paid the consideration of $150,000 to the first appellant and that it was an implied term of the agreement that the shares would be issued by the first
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appellant to the respondent within a reasonable time of the making of the agreement. The respondent further alleged that despite the lapse of a reasonable time the first appellant had failed to issue the shares to her and had by reason of its conduct evinced an intention not to be bound by the agreement and had repudiated it. 6 The respondent pleaded in the alternative that the second appellant, acting on behalf of the first appellant, had orally represented to her that she would be able to achieve a return of 5 per cent to 10 per cent per annum from her investment and that she could recover her investment, if she decided to leave Australia and return to Italy. The respondent says that the misrepresentations were false and misleading and induced her to enter into the agreement and pay the amount of $150,000 to the first appellant. 7 The application for summary judgment pursuant to O 16 r 1(1) of the Rules of the Supreme Court was heard on 21 October 2004. It appears from the appellants' outline of submissions filed in support of their application that the application was essentially based on four grounds. The first ground was that no proper basis had been pleaded for the implied term regarding the time for the issuing of the shares. The second ground was that it was common cause between the parties that the respondent had not paid the full price for the shares, but had only paid a total amount of $148,582. The third ground was that affidavit evidence filed by the appellants indicated that the shares had in fact been issued, but that by reason of a delay in the offices of the Australian Securities and Investments Commission (ASIC) their database did not indicate that the shares had been issued to the respondent. The fourth ground was that the representations could not possibly have been made as the second appellant did not speak Italian and the respondent did not speak English. The allegation by the respondent that the second appellants' representations made in English were translated to her by a Mr Piantadosi were refuted in an affidavit filed by Mr Piantadosi in support of the appellants' application for summary judgment in which he denied that the matters alleged to have been represented to the respondent were discussed during any conversations between the first appellant, himself and the respondent. 8 The respondent filed an affidavit in opposition to the application for summary judgment, dated 22 September 2004, in which she stated that she had received what purported to be a share certificate for the 50,000 shares, but referred to an affidavit filed by her solicitor from which it appears that the ASIC records indicate that as at 4 February 2004 no shares had been issued to the respondent. The respondent also said in her
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affidavit that all her oral communications with the second appellant had been in the presence of Mr Piantadosi, that the representations had been made to her and that she had no reason to believe that Mr Piantadosi had not translated them correctly to her at the time. 9 The Registrar dismissed the application for summary judgment and reserved the costs of the application for the trial Judge. He also gave leave to the respondent to file a minute of proposed amended statement of claim. No reasons for the decision are available. 10 In November 2004 the respondent filed a minute of amended statement of claim, the content of which is not relevant for present purposes. In December 2004 the respondent made an application to further amend her statement of claim pursuant to a minute of amended statement of claim dated December 2004. In this minute the respondent deleted the allegation that it was an implied term of the agreement that the shares were to be issued within a reasonable time of the making of the agreement and instead pleaded the following in par 4 of the minute: "There was an impliedexpress term of the Agreement that the Shares would be issued by the first defendant to the plaintiff within a reasonable time of the making of the Agreement on receipt of the funds by the first defendant during April/May 1999." 11 In par 3 of the minute of amended statement of claim the respondent had pleaded that she had paid the consideration of $150,000 to the first appellant during or about April/May 1999. 12 The respondent's application to further amend her amended statement of claim was heard on 25 January 2005. It appears from the submissions filed by the appellants in opposition to this application that their opposition to the further amended statement of claim was based on grounds similar to the grounds raised in support of their application for summary judgment. Paragraph 4 of the minute of amended statement of claim pleading the express term regarding the time when the shares would be issued was also objected to. The submissions filed by the appellants in respect of the respondent's application to amend the statement of claim incorporate an earlier letter by the appellants' solicitor which deals with par 4 as if the implied term that the shares were to be issued within a reasonable time had still been pleaded. However, it appears from the transcript of the hearing of this application that the objection to par 4 was in fact made on the express term as it appeared in the minute of amended
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statement of claim. The objection was that, read together with par 3, par 4 was vague and embarrassing, as it was not clear from the manner in which the express term had been pleaded whether the agreement was that the shares would be issued upon receipt of the funds, which happened to be during April/May 1999, or whether the agreement was that the shares would be issued during April/May 1999. 13 In my view that objection was valid at the time of the hearing. The time agreed between the parties for the issuing of the shares is an important aspect of the respondent's case, as she relies on the appellants having repudiated the agreement by not issuing the shares on time. It is therefore important for the appellants to know whether the respondent alleges that there was a fixed time (during April/May 1999) expressly agreed upon between the parties or whether the time was agreed to be when the funds were received. 14 It could be argued that on a sensible reading of the minute of amended statement of claim together with the discovered agreement the intention in par 4 was clear, namely that the shares were to be issued on receipt of funds and that the funds were received in April/May 1999. The problem was that there seems to have been a miscommunication between the parties' respective solicitors regarding the identification of the correct document as the agreement. 15 The agreement relied upon by the respondent was attached to the submissions filed by the respondent on the appeal. This is the same document that had been attached to the respondent's affidavit in opposition to the summary judgment filed on 22 September 2004. This agreement does not say that the shares are to be issued in April/May 1999. Clause 2 of the agreement provides as follows in this regard: "The schedule of payment will be that on receipt of the funds in the account of the company (see attached appendix) the shares will be issued." 16 The agreement has an attachment, but this only deals with the banking details of the first appellant. It does not say anything about the time when any shares will be issued. 17 It appears that at the time of the hearing of the respondent's application to amend the statement of claim, counsel for the appellants was under the impression that there might be another version of the agreement or at least another appendix to the agreement which indicated that the time for the issuing of the shares to the respondent was to be the
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period April/May 1999. I t is not clear why the appellant's counsel was under that impression. There is no indication in the transcript of the hearing regarding the application to amend that the counsel then appearing for the respondent raised the possibility of an agreement containing a further appendix. 18 At the hearing before Registrar Kingsley counsel for the appellants referred to a letter sent by him to the respondent's solicitor, dated 12 January 2005, in which he had asked whether the agreement pleaded in the minute of amended statement of claim was the agreement attached to the affidavit of the respondent, dated 22 September 2004. He said that he had not received a response to his letter. It appears from the transcript that in arguing in reply counsel for the respondent merely referred to cl 2 of the agreement. There does not seem to have been any explanation by counsel for the respondent (who was not the counsel appearing for the respondent at the hearing of the appeal) that the correct version of the agreement was the one attached to the respondent's affidavit of 22 September 2004 and that there was no further appendix to the agreement. Counsel also did not concede that par 4 of the minute of amended statement of claim was meant to be read that the shares had to be issued on receipt of the funds which happened to be in April/May 1999. Accordingly, counsel for the appellants continued to labour under the confusion as to whether par 4 pleaded that the shares were to be issued in April/May 1999 or whether it said that the shares were to be issued on receipt of the funds. 19 The Registrar found that there was "at least the basis for a plea that the shares would be issued during a particular period". This finding appears to have been made on the basis of the wording of the term in the agreement. It does not appear from the transcript that this finding was made on the basis that there might have been a missing appendix. The learned Registrar rejected all the objections to the minute of amended statement of claim. He found that the objections raised by the appellants were matters which could be best decided at trial and after evidence had been led. Accordingly, the Registrar allowed the minute of amended statement of claim to stand as the amended statement of claim. The Registrar also ordered that the costs of the hearing be the respondent's costs in the cause. 20 The confusion arising from the manner in which par 4 was pleaded could have been resolved at the hearing of the application to amend if counsel for the respondent had provided a suitable explanation. On the hearing of this appeal counsel appearing for the respondent explained that
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par 4 of the minute of amended statement of claim was never meant to convey the impression that there was an express term stating that the shares were to be issued in April/May 1999. 21 On 11 February 2005 the appellants brought a further application pursuant to O 26 r 8(2) of the Rules of the Supreme Court for an order that the respondent produce or identify the agreement referred to in the amended statement of claim. At the hearing of this application before Deputy Registrar Hewitt on 24 February 2005 counsel appearing for the respondent identified the agreement as being the agreement attached to the respondent’s affidavit in opposition to the summary judgment application. Further, pursuant to a letter by the appellants' solicitors to the respondent's solicitor, dated 25 February 2005, the respondent's counsel conceded at this hearing that the words "during April/May 1999" in par 4 of the amended statement of claim should be struck out. This concession should have been made at the hearing of the application to amend the statement of claim. If the concession had been made at that time, there would have been no confusion and the parties could presumably have agreed that par 4 was to be read in that manner. 22 In the letter by the appellants' solicitors to the respondent's solicitor, dated 25 February 2005, the appellants' solicitor asked whether the respondent's solicitor would agree to a minute of consent orders that the words "during April/May 1999" be struck out and that the costs order made by Registrar Kingsley on 25 January 2005 be set aside. It appears that the respondent did not agree to the minute of consent orders as the appellants subsequently filed the notice of appeal. 23 On 8 March 2005 the appellants filed the notice of appeal appealing against both the dismissal of the summary judgment application and the order allowing the respondent to amend her statement of claim. In the affidavit filed by the appellants' solicitor in support of the application for leave to appeal out of time it is said that the appellants had considered appealing both the decisions of the learned Registrar but were reluctant to do so without knowing whether the respondent could produce an agreement which contained an express term to the effect that the shares would be issued to her in April/May 1999. It was only when the agreement was identified on 24 February 2005 as being the agreement attached to the respondent's affidavit of 22 September 1999 that the appellants knew that there was no such term in the agreement and they were then advised by their solicitor to proceed with the appeal.
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Leave to file appeal out of time
24 Before deciding the appeals on their merits, the appellants have to persuade this Court that it should exercise its discretion to extend the time for the filing of the notice of appeal. The principles applicable in relation to the exercise of the court's discretion to extend the time under the Rules of Court are well documented. The first principle is that the object of the rule allowing an extension of time is to ensure that justice is done between the parties. In Gallo v Dawson (1990) 64 ALJR 458 McHugh J held in respect of O 70 r 3 of the High Court Rules 1952 (Cth) as follows at 459: "The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1978] VR 257, at 262." 25 In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, Kennedy J, in reliance on Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946, identified the following four major factors to be considered in the exercise of the discretion to allow an extension of time for the filing of an appeal (at 198): "They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept the foregoing are the major factors in the present case." 26 This identification of the four major factors was adopted by the Full Court of the Supreme Court of Western Australia in Mantegna v Seafeast Sales Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950497; 24 August 1995 at 4. 27 I have already referred to the fact that the notice of appeal was filed more than four months after the dismissal of the summary judgment application and approximately six weeks after the order granting the respondent leave to amend her statement of claim. The only reason advanced for the delay in the affidavit deposed to by the appellants' solicitor is that the appellants did not want to file the appeals without knowing whether the agreement contained a term pursuant to which the shares were to be issued in April/May of 1999. Counsel for the appellants
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appearing at the hearing of the appeals attached particular significance to the fact that the correct agreement had only been identified at a later stage and that the availability of this information had put a whole new light on the matter and made it apparent that the decisions handed down by the Registrar had been incorrect. I do not agree with that reasoning in respect of the appeal against the dismissal of the summary judgment. In my view the identification of the agreement is not a good reason to explain the delay in filing the appeal against this order. This may have been a valid reason in respect of the appeal against the order allowing the respondent to amend her statement of claim. However, I cannot see that it has anything to do with the appeal against the dismissal of the summary judgment application. The main grounds of the summary judgment application appear to have been the allegation that the full consideration had not been paid by the respondent, that the shares had in fact been issued and that the respondent would not be able to prove the alleged representations made to her at the trial. The findings in respect of those matters could have been appealed without the appellants having resolved the question of what the terms of the agreement were in relation to when the shares were to be issued. In any event the minute of amended statement of claim with the amended par 4 which caused the confusion as to when the shares were to be issued was only filed in December 2004. The application for summary judgment was heard on 21 October 2004. 28 I am further of the view that the appellants do not have an arguable case in respect of the appeal against the Registrar’s dismissal of the summary judgment. It is well established law that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 the High Court per Barwick CJ held as follows: "The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 29 In my view the amended statement of claim cannot be said to fall under any of the above descriptions. There is clearly a dispute of fact as to whether the shares were or were not issued and whether the full amount
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of the consideration was paid by the respondent. There is also a dispute of fact regarding the representations alleged to have been made by the first appellant to the respondent. The fact that Mr Piantadosi says on affidavit that the matters identified by the respondent as false representations were not raised in any discussions between himself, the first appellant and the respondent does not mean that the respondent cannot possibly succeed in proving that the representations were made to her. The respondent has not yet had the opportunity of cross-examining Mr Piantadosi and there is clearly a dispute of fact as to whether such representations were made. The mere fact that Mr Piantadosi appears to support the appellants' case does not mean that the respondent's case is hopeless. 30 Where the facts are in dispute on an application for summary judgment, a court should not endeavour to dispose of the factual merits on a conflict of affidavits: Webster v Lampard (1993) 177 CLR 598 at 602, 604 and 613 and Whitehall Holdings Pty Ltd & Anor v Custom Credit Corporation Ltd, unreported; FCt SCt of WA; Library No 9189; 13 December 1991 at 9. Further, the "overall legal burden of persuasion" rests on the applicant for summary judgment to show that there is no serious question to be tried on any cause of action raised by the plaintiff: Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 at 23. 31 In light of the above I am of the view that the appellants do not have an arguable case in respect of the appeal of the order dismissing the summary judgment application. I can also not see how the fact that the correct agreement has now been identified, which indicates that the shares were to be issued upon receipt of the consideration, will assist the appellants in an appeal in respect of the summary judgment application. 32 As regards any prejudice to the respondent in allowing an extension of the time for the filing of the appeal, Malcolm CJ held as follows in Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988 at 5: "The object of conferring a discretion to extend the time is the avoidance of injustice. … The question in each case is whether justice as between the parties would be best served by granting or refusing the application. The possible injustice to the applicant if the application is refused and the judgment left undisturbed, and possible injustice to the applicant resulting from the disturbance of his vested interest in the maintenance of
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the judgment must be weighed in the balance: Hughes v National Trustees (supra) at 263 - 264." 33 In my view justice would be best served in this case by leaving the order refusing summary judgment undisturbed. Accordingly, leave to extend the time for the filing of the appeal against the Registrar's dismissal of the appellants' application for summary judgment is refused. 34 The position is different with regard to the appeal against the Registrar's decision to allow the amendment of the statement of claim. Firstly, the appeal is only out of time by about six weeks in respect of that order. Secondly, I accept that the appellants thought that they needed certainty as to which document constituted the agreement before filing an appeal and that this is an adequate reason to explain the delay. In my view the availability of the agreement was not necessary for the objection against par 4 of the minute of amended statement of claim to succeed, as this par was vague and embarrassing on the face of the pleading and the appellants were entitled to object to it. However, I accept that the appellants thought it would be helpful to determine what the agreement in fact said and that this is an adequate explanation for the delay. There is no substantial prejudice for the respondent in allowing the appeal against the order allowing the amendment. It is clear to both parties at this stage what the respondent intended with her pleading of par 4 of the amended statement of claim, namely that the words “during April/May 1999”were only descriptive of when the funds were in fact received. All that is required at this stage is to fix up this paragraph so that it accords with the intention of the respondent. 35 Accordingly, the time for the filing of the appeal against the Registrar's decision to allow the amendment of the statement of claim is extended to 8 March 2005.
The appeal against the order allowing the amendment 36 As indicated earlier, I am of the view that the minute of amended statement of claim was vague and embarrassing at the time of the hearing of the respondent's application to amend it. At the hearing of the appeal counsel for the respondent argued that par 4 clearly indicated that the words "during April/May 1999" were only added to emphasise when the funds were in fact paid or when the shares were to be issued. I have said earlier that I do not agree with this proposition. 37 Counsel for the respondent argued that the identification of the correct agreement had not added anything to the appellants' understanding
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of and objection to par 4. Counsel for the respondent further submitted that if the identification of the correct agreement at the hearing before Deputy Registrar Hewitt shed new light on the matter for the appellants, they should then have brought an application to strike out the offending words in par 4. I also do not agree with this submission. The term pleaded in par 4 was vague and embarrassing at the time of the hearing of the application to amend and the appellants are entitled to appeal that decision. Further, the appellants' confusion regarding when the shares were to be issued could have been resolved at the hearing of the application before Registrar Kingsley by the respondent's counsel identifying the correct agreement and/or conceding that the words "during April/May 1999" were merely descriptive and therefore superfluous. Such an approach would have resolved this issue at the time and would have made the appeal against the order allowing the amendment unnecessary. 38 Accordingly, the appeal against the Registrar's order allowing the respondent’s application to amend her statement of claim succeeds. 39 Counsel for the respondent asked that if the Court came to the conclusion that par 4 of the amended statement of claim was vague and embarrassing that the respondent be allowed to amend this paragraph by the insertion of the words "so that these shares should have been issued" before the words "during April/May 1999". I allow the respondent leave to make this amendment and to file a further amended statement of claim in this regard.
Costs 40 Both parties submitted that the other should be liable for costs on an indemnity basis on the ground that the other party should have known that there was no prospect of success, relying on Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397 at 401. In my view the costs should follow the event and the appellants should pay the respondent’s costs of the appeal regarding the dismissal of the summary judgment application, whereas the respondent should pay the appellants' costs of the appeal regarding the order allowing the amendment of the respondent’s statement of claim. The order made by Registrar Kingsley that the costs of the application be the respondents in the cause should be replaced by an order that the respondent pay the appellants' costs of the application. 41 I do not agree that any of the costs should be awarded on an indemnity basis. In Fountain Selected Meats (Sales) Pty Ltd
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v International Produce Merchants Pty Ltd & Ors (supra) Ward J held the following at 401: "I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law." 42 There was no evidence indicating that the appellants' decision to file the appeal in respect of the dismissal of the summary judgment was arrived at for some ulterior motive or that there had been wilful disregard of the established law. Similarly, I am not persuaded that the respondent’s opposition to the appeal against the order allowing her to amend her statement of claim was fuelled by some ulterior motive. 43 I should say that better communication between the solicitors of both parties would have gone a long way in making the appeal in respect of the order allowing the amendment unnecessary. The lack of communication between the solicitors was possibly partly caused by the counsel for the appellants making submissions on the hearing of the application to amend the statement of claim that the allegations in the statement of claim dealing with the representations could not be supported in truth and that the solicitor for the respondent was not entitled to plead this. Counsel for the respondent appearing at that hearing interpreted this as an attack on his integrity. As indicated earlier, in my view there was no valid objection to the respondent pleading the representations, as the respondent is entitled to have Mr Piantadosi's allegations made in his affidavit tested in cross-examination. However, in my view, these matters do not provide a basis for an order for indemnity costs against either party.
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