Bowen v Alsanto Nominees Pty Ltd
[2011] WASCA 39 (S)
•23 FEBRUARY 2011
BOWEN -v- ALSANTO NOMINEES PTY LTD [2011] WASCA 39 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 39 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:116/2009 | ON THE PAPERS | |
| Coram: | McLURE P NEWNES JA MURPHY JA | 23/02/11 | |
| 7/04/11 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay appellants' costs of the appeal Costs of trial remitted to trial judge for determination | ||
| B | |||
| PDF Version |
| Parties: | NIELS BOWEN JAYNE ELIZABETH CANNON ALSANTO NOMINEES PTY LTD |
Catchwords: | Costs Appellants successful but failed on some grounds of appeal Whether entitled only to a portion of their costs Relevant principles Costs at trial Whether appellants' conduct caused unnecessary costs at trial Costs of trial remitted to trial judge |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1(1) |
Case References: | Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130 Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S) Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282 MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOWEN -v- ALSANTO NOMINEES PTY LTD [2011] WASCA 39 (S) CORAM : McLURE P
- NEWNES JA
MURPHY JA
DECISION : 7 APRIL 2011 FILE NO/S : CACV 116 of 2009 BETWEEN : NIELS BOWEN
- JAYNE ELIZABETH CANNON
Appellants
AND
ALSANTO NOMINEES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER STAUDE
Citation : ALSANTO NOMINEES PTY LTD -v- BOWEN & ANOR [2009] WADC 130
File No : CIV 1461 of 2007
(Page 2)
Catchwords:
Costs - Appellants successful but failed on some grounds of appeal - Whether entitled only to a portion of their costs - Relevant principles - Costs at trial - Whether appellants' conduct caused unnecessary costs at trial - Costs of trial remitted to trial judge
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1(1)
Result:
Respondent to pay appellants' costs of the appeal
Costs of trial remitted to trial judge for determination
Category: B
Representation:
Counsel:
Appellants : No appearance (heard on the papers)
Respondent : No appearance (heard on the papers)
Solicitors:
Appellants : Tottle Partners
Respondent : GV Lawyers
Case(s) referred to in judgment(s):
Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S)
Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282
MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989)
Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394
NRMA Ltd v Morgan (No 3) [1999] NSWSC 768
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
(Page 3)
1 JUDGMENT OF THE COURT: On 23 February 2011, this court published its reasons for concluding that the appeal should be allowed, the decision of the primary judge set aside and the respondent's claim against the appellants dismissed: Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39. The parties sought an opportunity to consider the reasons for judgment before making submissions as to costs. Directions were therefore given for the filing of written submissions by each party and it was ordered that the question of costs be determined on the papers. The written submissions have now been filed.
2 The respondent submits that the appellants should only be entitled to a portion of their costs of the appeal and the trial. In respect of the appeal, it says that while the appellants succeeded on the first and third of their three grounds of appeal, they failed on the second ground which, together with the first ground, occupied most of the time on the appeal. In respect of the trial, the respondent submits that the length of the trial was unnecessarily extended by the way in which the appellants conducted their case. The respondent refers, among other things, to the amendments to the defence made by the appellants on the second day of the trial, which led to the adjournment of the trial for a period of some three weeks and to a chain of fresh pleadings by both sides which widened the field of dispute and caused the trial to be longer than it might otherwise have been: Alsanto Nominees Pty Ltd v Bowen [2009] WADC 130 [8] - [11].
3 The respondent says it should be required to pay only 20% of the appellants' costs of the trial and 50% of the appellants' costs of the appeal. Alternatively, it says the question of the costs of the trial should be remitted to the primary judge.
4 The appellants submit that they are entitled to an order that the respondent pay their costs of the trial and the appeal. They say that there is nothing which would justify a departure from the general principle that costs follow the event. They argue that the effect of the amendments to the defence at trial did not raise any substantial issues that would not otherwise have had to be canvassed and, in any event, the respondent itself extended the trial by putting in issue matters, such as the effect of the legislation regulating pharmacies, on which it failed. In relation to the appeal, the appellants submit that while they were unsuccessful on one of the three grounds of appeal, it was not unreasonable to raise the unsuccessful ground and that ground did not raise any discrete factual issues.
(Page 4)
5 It is clear that while the court has a broad discretion as to costs, generally costs will follow the event: Rules of the Supreme Court 1971 (WA), O 66 r 1(1). It is incumbent upon the unsuccessful party to satisfy the court that there are good reasons why it should not pay the other party's costs: Nikolaou v Papasavas, Phillips & Co (No 2) [1989] HCA 11; (1989) 166 CLR 394, 407.
6 The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.
7 In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].
8 In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the position was put as follows:
[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way [7].
9 In relation to the appeal, we are not satisfied that there should be any departure from the general rule that costs follow the event. While the first ground of appeal raised a discrete issue, we are not persuaded that it added to the overall costs of the appeal in a significant and readily discernible way. The point was a relatively short one and depended upon
(Page 5)
- facts which were not in contention. We do not consider that it substantially expanded the ambit of the appeal and it does not seem to us that the separate costs attributable to it could readily be assessed. The respondent should pay the appellants' costs of the appeal to be taxed.
10 The costs of the trial raise different considerations. It would ordinarily follow from the finding of this court on the appeal that the appellants would be entitled to their costs of the trial. However, it appears from the comments of the primary judge [8] - [11] that the conduct of the appellants in amending their defence during the trial may have caused significant unnecessary costs to be incurred. In view of his finding that the respondent was entitled to judgment, and therefore to the costs of the action, it was unnecessary for the primary judge to give separate consideration to that question. Clearly, however, if the appellants caused unnecessary costs to be incurred that would have an important bearing on whether, or to what extent, the appellants' entitlement to the costs of the trial should be reduced. Regrettably, this court is not in a position to determine whether that was the case and, if it was, the significance of those costs in the overall context of the trial. It is therefore necessary for the question of the costs of the trial to be remitted to the primary judge.
11 The orders of the court will therefore be:
1. the respondent pay the appellants' costs of the appeal to be taxed;
2. the question of the costs of the trial be remitted to the primary judge for determination.
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